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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


141  l^ 

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Hi        11,;  <n 


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M 
1.8 


1.25      1.4 

1.6 

-m 6"     



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Sciences 
Corporation 


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r\  WESY  MAIN  STRIET 

WEBSTER,  N.Y.  MS80 

(716)  87; -4503 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


n 

n 


v\ 


D 
D 

n 


I 


n 


n 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommagee 

Covers  restored  and/or  laminated/ 
Couverture  restaur^e  et/ou  pellicul^e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  g^ographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli6  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serree  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  ^td  filmdes. 

Additional  comments:/ 
Commentaires  suppl6mentaires: 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m6thode  normale  de  filmage 
sont  indiqu^s  ci-dessous. 


D 
D 
D 
0 

n 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommagdes 

Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pellicul6es 

Pages  discoloured,  stained  or  foxed/ 
Pages  d^colordes,  tacheties  ou  piqu^es 

Pages  detached/ 
Pages  d^tach^es 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Quality  in^gale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t<§  filmdes  d  nouveau  de  facon  d 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film6  au  taux  de  reduction  indiqui  ci-dessous. 


10X 

14X 

18X 

22% 

26X 

30X 

J 

12X 

1 

16X 

20X 

24X 

28X 

32X 

The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

National  Library  of  Canada 


L'exemplaire  filmd  fut  reproduit  grSce  d  la 
g6ndrosit6  de: 

Bibliothdque  nationale  du  Canada 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Les  images  suivantes  ont  6td  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetd  de  l'exemplaire  filmd,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimde  sont  film^s  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  \a 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  fiimds  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^*>  (meaning  "CON- 
TINUED "),  or  the  symbol  V  (meaning  "END  "), 
whichever  applies. 


Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  chaque  microfiche,  seion  le 
cas:  le  symbole  — ^  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film^s  &  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichd,  il  est  filmd  d  partir 
de  Tangle  supdrieur  gauche,  de  gauche  d  droite. 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  la  m6thode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

-.y 


X 


A 


3^ 


Las  juj^-a 


!;i:l..\ii\(i   i() 


THE  TREATY  OF  WASHINGTOiT 


^1  voLr.\iE  jil^(;l\|.;va  ahditritiox 

I-  - 


COATAIXIXG  IIIE  ABwniEM  of  Till:  LXITj;!,  i^niE.^.    lI„,riIFNT  OF  nrB 

^1ATE3ILM,S  OK  AKiaMIKXTS  JIADE  r.Y  THE      --       " 
UESPECTiV[;  AflKXTS  dl!  COU 


EOGK/^i^H'^^*- 


^VASITIXGTOX: 


G  o  V  K  w  X  :\i  E  ^-/r    i>  u  1  >;  -j. 


18 


I  NO     OFFICE. 


<  •>. 


II 


1\Vr,LK  OF  CONTENTS. 


I. 

argi:mi:nt  of  the  rMiHo  statks  dklivkked  to  tiii:  tkiiu'xal  of 

AK'MITKATIOX  AT  (iFNFVA,  .irXK  IT),  l-T-i. 


rau 


I,  iMitoDrciioN  : 

Aiyiiiiii'iit  pri'siMitcil    ill  lU'L'oi'diini'i'  witli   inov  i.>ions  of  the  Tioaty  of 

Wiihliiii.utim 

'J'lu'  rfs|>i'ctivi'  C'iisi'saml  DiKMiiueiits 

('(Ill liter  Cases 

The  issues  to  he  (h'tenuiiied  are  now  settled 

II.  Tin;  CoNi  i;i>\  Kiisv  SruMiiTKi)  to  Aimuii:  ation  : 

The  Aihilrators  already  ae(|i>aiiited  with  the  jitiieral  nature  of  I  lie  faets.. 

Ill  siiiiiiressiuj;-  an  armed  iiisiirreetiou  tlii^  United  .Stales  exercised  helli'^- 
erent  flowers,  and  prevented  insurgents  from  earryiiiy  on  niaritinio 
war  from  their  own  resources 

The  ri^ht  to  do  this  un([uestic)ned  :  other  nations  no  jiarties  to  the  con- 
lliet 

Ahstinenee  of  intervention  hy  another  I'ower  is  not  neutrality 

It  is  a  niainteiianeii  of  jirevioiisly  existiuj;'  ndations 

()ther  Powers  have  to  (h'cide  in  stieh  ease  only  whether   vhe\  a('(|aiesco 

in  the  exercise;  of  hellij;'erent  powers  by  the  .Soverei;;n 

'  Non-aei|uiescen('e  is  intervention 

(Questions  aiisin;;-  beyond  territorial  limits  of  tho  .S()Vi.'roij>n  should  he  de- 
cided as  they  arise , 

Such  course  secures  impartiality  and,  when  justitied  Ijy  results,  an 
eiiuality  between  contenilinu'  jiarlies  whicdi  resembles  what  is  known 
as  neutrality  when  exercised  b(;tween  rightfi'l  bellij;t'rents 

This  inineiple  reco;;nized  by  f'nited  States  Supreme  Court 

1 'rev i oils  instances  in  jioint 

l)ellii>'ereiit  jiowers  liehdii;-  to  the  Sovereij;ii  of  rij;lit ;  to  the  rebel  id"  suf- 
ferance   

Conferrin,:;-  bellij;ereiit  rights  on  insurgents  by  Great  IJrituiii  was  an  in- 
tervention   

The  (^>ucen's  ]!roclaination 

was  voluntary  and  anticipatory , 

was  not  called  for  by  the  relations  between  tho  Governments 

had  no  Justilieation 

and  (  haiigud  the  legal  relations  between  Great  Ibitain  and  the  in- 
surgents   

Its  effect  upon  the  act  of  carrying  on  war  on  the  high  seas 

Its  ell'ect  upon  coniniereial  contracts 

It  was  followed  l)y  systiMiiatic  contributions  in  aid  of  the  insurgents  .. . 

The  rnited  States  su  fir  red  great  injuries 

Which  n;sulted  from  aid  and  assistance  originating  in  JSritish  jurisdie- 
tioii 

This  aid  was  organized,  systematic,  and  oHicial  

Nature;  of  tho  injuries  iiiiiicted  on  the  I'nited  States 

No  nation  but  Great  JJritain  iiistriunental  in  inllieting  them 

They  form  the  subject  of  this  arbitration 

I'rovisions  of  the  Treaty  of  Washington  resjieeting  the  arbitritticm 

Description  o*'  the  claims 

The  IJules  of  the  Treaty 

Tho  provisions  of  Article  VII 

EtVect  of  an  award 

The  measure  of  iiidemnitv  claimed 


8 
s 
8 

8 
8 


0 

u 

10 

10 
10 
10 
10 
10 

11 
11 
11 
11 

12 
12 

i:? 
i:{ 

13 
14 
14 
14 


16 

ir> 

10 
16 


IV 


CONTKNT.S. 


III.  (ii:xi:i!.\i.  Dix  i»i(i\  (ii    (/I  KMHiNs  ur  Law: 

CVintfiitioii  of  I'liitiMl  .States  rf<;iinliii;f  liiilmc  of  fJicat  ISritiiiii  to  niaiii- 

taiii  neutrality 

'Rfs|ioiisiliility  icsiiKini;-  iVoiii  such  I'aihirt' 

Sro)ic  of  tlir  slllmiissioii 

Mcaiiinj;-  of  the   laiii;iiagt'   "all  claims  j;i(i\viii;^  oiii   of  tlin  acts  of  the 

ciiiiscrs" 

Coiiti'iit  ions  of  (ircat  liritaiii 

I'io]ios('(l  con  ISO  of  aij^nnn-nt 

(icncial  considerations  of  law 

(.Jreat  liiitain  j;nilty  of  culjiahle  nej;li;^enee,  (;ven  when  measurinj;'  its  dn- 

tics  hy  the  I'oieiirn-Hnlistnient  Act 

International  dnties  inch'pendent  of  ninnieijial  law 

J>fects  of  Foicij;ii-l".nlistinent  Act 

They  niij;ht  have  heen  icniedi(;d 

These  are  not  (|nestions  of  neutrality 

(ireat  liritain  le^ially  res] tonsil ile  to  I'nited  States 

.Sir  1{.  I'hilliinore's  authority  cited 

liCfral  tlicory  i>{'  I'nited  States  resiiectiui;'  i|  nest  ions  at  issue 

Rijiht  to  make  war 

JJij^ht  to  j;i\c  cause  for  -war 

AN'tiat  may  he  can>e 

Neutrality 

War.  what  it  is 

Sales  of  arms  and  contra  hand  ol'  \var 

Disjiatch  of  armed  vessels 

.K'es]ionsihility  of  .'>overei);n  for  \iolatiuu  of  m-utrality 

Constitutional   inaVulities  cannot  he  pleaded   in  ausiver  to  ;i  charge  (d' 

such  violation 

Aliened  constitutional  inahi  lit  y  of  (ireat  1  hi  tain  cxamiiicil 

'i'li(>  i>rerojiative  power  of  the  Crown 

1\'.  MrscKi.r.ANKors  CoNsiDKitAnoNs : 

Many  irrelevant  nmtters  in  th(»  British  Case  and  Counter  Case 

Its  treatin(iit  of  thelhitish  Forei.i;ii-ladistmcnt  Act  of  l"^!',* 

its  comjiarisou  Ik;) ween  the  Ihitish  and  Anu'rican  acts  nnju.-t 

The  Governnu'Ut  ot  the  I'liited  States  hasalwaysheen  anxious  to  possess 
le^iislative  powers  sullicient  for  the  performance  of  its  duties  as  a  neu- 
tral    

Disinclination  of  J 'arl lament  to  lej^islate  on  the  suhjc'ct 

Lcgislalion  of  other  countries 

Disiinction  hetween  prevention  and  punishment 

France 

Italy 

.'Switzerland 

Ihazil 

rortn-;al 

Spain  

Itelginm  and  Holland 

Ivussia  and  Prussia 

Denmark  and  .Sweden 

Comiiarative  review 

Conclusions 

The  history  of  the  Fnited  States  as  a  ni'Utral  a  part  of  the  ISritish  ple-u',- 

inu,s 

Its  relevancy  denied 

Neutrality   toward  Grciit  Britain  durinj;    I'resident  ^^'aslllngton■s 
administration 

Fxpedition  of  Miranda 

l.'evolt  of  Sitanish-Anicrican  colonies  

War  hetween  l'ortnj;al  and  the  Banda  Oriental 

Walker's  exiiedition 

Cnha 

Fenians 

British  enlist nn-nts  dnrinjr  the  Crimean  War 

The  eonrsi!  of  (Jrcat  Britain  as  a  Ijelligerent  toward  neutrals   


I'n-r 


()r(h'rs  in  Council 

Course  toward  France  durinj'  the  American  KevoIuti(Ui 


Course  toward  the  Netherlands 
General  ohli^^atious  of  neutrids  ... 


17 
IS 
Ifj 

18 
lit 
111 
lit 

lit 
lit 
lit 
^tt 
'JO 
'■>(> 
'JU 

•JO 

'2'2 

'2'i 
oo 

•>•> 


•Ji 

i>3 

2S 
'24 


■,'lt 

:w 
;vi 
:;4 
:!4 

;!."> 

:{7 
:'.7 
:'.7 

:iS 

:]s 

4(t 
41 
A-2 
44 
44 
44 
4.'> 
4t> 
4S 
4S 
4i» 
4l> 
41) 


fONTKNTS. 


17 

18 

1^ 

18 
10 
111 
lit 

lit 
lit 
lit 
•^11 
Uil 

'20 

'2:i 

'i'.i 
'U 


2'.) 

;vi 
:;4 
\\\ 

:!."> 

:u; 
;'.(> 

:'.7 
:!7 


II  s 


\i4 

40 

41 

4i 

44 

44 

44 

4;') 

4() 

4rt 

4S 

4l> 


IV.— Ml^^iin.I.AM.nCS    ("((N.-IKIIIIATIDNS — ( '(Hit  illllcd. 

.Iiiliii  Lairil  as  a  witin-ss.     (  NdIc  "i 'il 

l'(ir(hii>f  ol'  anus,     i  N'otf) ">l 

v.— Si.vri'Mi.M   oi    Si. mi;  (ii.Ni:it\r.  I'm  is  ri;i!ii\i:M    lo   inr.  lN<,>rii;v  a.m> 
Arri.icAr.i.i;  to  Kacii  (  imisii;, 
Yu'i^n/n' 111' lads  siatiil  in  tlir  Aiiiciiiaii  Case  tii  csialilisli    thr   niitViciKlly 

iiiiiiiiiis  ol'  till'.  I>i  h  isli  (JdvciiMifiit  anil  in'oplc ."-J 

Tlir  IJi  il  isli  n  spouse  no  (Iniial .'"J 

Ivcjoindcr  to  tlir  ISiitisli  rcspon  ..i' .">:{ 

liclcvaiicy  of  tile  facts  to  I  lii'  issue .">:i 

Lonl  Weslhmy .'4 

Mr.  Moiitau,iH'  1'  -iiiavd  "(4 

Karl  Itiissell .-.I 

The  liiilisli  Case ."."> 

Th(!  facts  stated  in  the  Aiuericau  Case  to  lie  cousideieil  as  (Moveil ."),'> 

The  proofs  suliuiilled  w  illi  the  AMU-rican  Case  of  the  sy>  teuialic  and  of- 
ficial use  of  I'.ritish  territory  l>y  liie  iusmnents  w  iili  the  knowledge  of 

Cleat  itritaiii .")."> 

'J'licsc  facts  also  to  he  taken  as  |)Mi\  ed ;">(! 

\L — Till'.  l'i,i»i;ii>A .">r 

At  Liverpool .")7 

In  Ion  nation  l)y  .Mr.  .Vdaiiis ,"7 

Action  of  Her  Majesty's  (iox-erunicut .")7 

She  was  then  evidently  a  iiian-of-war .'cs 

C  ha  racier  of  Mr.  Adams's  repicsentatinn T)'.! 

.Action  of  the  liritish  (iovciniuent (ill 

What  ini;;hl    have  been  done : (ill 

What  actually  was  done (ill 

l.'euistry  of  tl'ie  Florida (il 

Clearance (i*,* 

Jt'rsiiiiii' (i'2 

Ne;iliiieiU'o  of  ISritish  oflicials (!;! 

A\'hat,  inijiht  have  lieeii  done  under  tin   .Merchants"  .*^hippin,u'-.\ot (i4 

Arrival  at  Nassau (il! 

Conduct  of  JJiitish  oflicials  there (i(i 

AV'aiit  of  diu!  diligence (iii 

.Judicial  ]>roc"edin^s  at  Nassau (i7 

Partial  and  uin'rieiidly  ciuidiict  of  the  Colonial  Aiithoritii.'s (ill 

Seizure  of  the  Florida 7:5 

'J'rial  and  relea.so ;  the  criticisuis  on  these  proc('ediiii;s  in  the  Aiiuulciin 

Case  are  sustained 7.") 

Arnianieiit  of  the  I'lorida 7.') 

At  Cjirdeiias,  at  Middle 7(i 

At  Nassau,  January  "J."),  18lil5 :  receives  coal,  sup]dies,  and  recruitniciils..  77 

At  liarhados,  February  "■^4,  led:? ;  receives  coal  and  repairs 77 

At  1  'eriiaiubuco 77 

At  liennuda,  July  l.'>,  If^iV.] ;  rejiiiirs  and  coals 77 

At  Ilrest  ;  receives  recruits  aiul  new  luacliiuery  from  Liverpool 7"' 

At  .Mai'tinique 7s< 

At  lialiia 7'.» 

Her  tenders ,  ...  7'.» 

All,— TlIK  Al.AIiAMA H) 

Her  adaptation  to  war  is  not  disputed Ml 

The  (|Uestion  to  b(>  decided .^il 

Mr.  Adams  j;ives  information  respectini;'  the  Alabama  .Iiine  *':?,  It'D'i .-fl 

L'eferred  to  Law-(lflicers  of  the  Crown H"i 

Their  action  upon  it >'"i 

l'roc(M'dini>,s  of  Customs  Authorities e;! 

Mr.  Adams  informed  tliat  the  American  (Joiisul  may  snlimit  evidence  to 

the  C(dlector  at  Liverpool 84 

Tiie  Consul  directed  to  furnish  information  to  the  Collector K") 

He  does  so  - 8,''» 

Conduct  of  the  Collector p(i 

lie  declines  to  act 87 

Jlr.  Adams  instructs  tlu;  Consul  to  continue  to  collect  jiroof ,■^7 

The  Consul  does  so,  and  presents  it  to  the  Collector,  with  a  reipiest  to 

seize  the  vessel 87 

J..aw-Advisers  of  the  Customs !~8 


VI 


CONTENTS. 


Piiiro 
VII.— Tin;  Ai.\r.\M  \— ('(iiitiiiiicil. 

ridoi'  Miliiiiittcd  to  till'  'I'lciisiuy  July  "i'i ,<;) 

Also  to  Kiirl  liiisscll 1 ,wi) 

Addii  idiiiil  i»riiol' h<> 

l.)[)iiii()n  o I'  Mr.  Collier ,■.;> 

I'ltsiiitcd  witli  iil'lidiivils  to  CoiiimissioiRrH  of  Ciistoiiis  .Inly  ii:$ HI) 

Action  oC  tilt'   lioard H'.l 

I'm  tlicr  f\  idfiicc  sulunittcd  I>y  .Mr.  AilaiiiH ll(» 

ilcr  ^l.ijcsty's  (iovTiiimciit  ii,i;rci'  to  kci'p  a  watch  on  the  vcssid HI 

'rill'  I.aw-OI'liccrs  think  the  vcnscI  .shouhl  he  detained ill 

Illness  ot  Sir  .John  ilai'din,!:; <ll 

i;sca|ie  of  tlie  Alaliania {)■> 

Inellicieiicy  of  the  snhse(|nent  proceed inj;s ij-t 

I'.arl  h'nsseil  thiidvs  this  a  scandal '.i;{ 

.Mr.  t'ohdeli's  \  iews i|;{ 

A\'ant  of  dne  dili;;enee  ;  in  what  it  consisted 114 

ArnianMiit  from  tin-  J'.ahaina .■ IKJ 

At  Martiiiiqne IKJ 

Destroys  the  Ilatteras <I7 

At  .Jamaica,  .Jan nary  •-'!',  l-C,;! ;  rejiaiis  iind  lands  prisoners <t7 

At  K'atii  Island... <JH 

At  Bahia 1)8 

Is  cM'lnded  from  I'lrazilian  ports  foi' violation  of  snvereii^nty  of  Ura/il..  Ill) 

At  Cape  Town :..' HI) 

At  Simon's  liay HI) 

The  Tnxaloosa KIO 

At  Simon's  Hay KH 

At  Sin;;apore KM 

At  Simon's  I!a\  :  coals  and  in'o\isions KU 

Is  destroyed  liy  tin-  Kcarsarue  .June  V.K  l~('i4 KU 

Iv'eiisons  V.  hy  threat  I  hi  Iain  is  resiionsihle  for  acts  of Itrj 

VI II.— Tin:  (ii.oii.iiA 1(11 

At  (Jlaseow 1(14 

Notoriety  of  the  construction  and  purposes  of  the  (ieorgia I(i4 

I>cf;i>try.  clearance,  and  departure 1(17 

Tlie  Ahir 108 

Armament  ot'  thi'  (;eor,:j,ia 1(18 

Mr.  Adams  f;i\ cs  information  to  Karl  Knss'dl ](I8 

liisnlticieiit  action  ol'  Her  Majestv'.s  Government 101) 

At  Hahia .'...'. 101) 

At  Trinadi 101) 

At  Simon's  r>av lO'J 

At  Chcilioum' 110 

At  Liverpotd 110 

Sale 110 

I.\.— I'lir.  Siir.NAMio.ui  Ill 

(ieiicral  re\  iew  of  facts  estahlishiiig  want  of  due  dili,neuce HI 

riirchase  ol'  the  Sea  Kin.i;' ll."> 

Her  de]iartnre llf) 

Di'partmc  of  thi'  Laurel  with  her  crew  and  arnuiniciit 11, '> 

Armament  of  the  Shenandoah  ..  , IKJ 

Arrives  at  Mi'lhonrne 117 

Permission  to  coal  and  njake  n.'pairs  granted 118 

I'rotcst  of  the  Consul ^. 118 

I'lilrieiidly  conduct  of  tlu^  Colony 118 

IJecrnitment  of  men  at  Melhoiirne Ill) 

The  Colonial  Authorities  informed  of  the  contemplated  recruitments,  and 

do  not  prevent  them.. I'iO 

Their  ineiticient  proceedings lvJ2 

Further  jwoof  of  recruiting  furnished  to  the  unthorities 1*24 

They  parley  with  the  commander  of  the  Shenandoah  in  place  of  acting..  1'2'> 

Further  information  of  contemplated  recruitments 12C> 

Ifefusal  of  the  Colonial  Anthorities  to  act 127 

Large  recruitments  of  men ;  departure  from  Melbourne V28 

Excessive  repairs  at  Melbourne  I'M 

Coaling  there  excessive 'I'.W 

Contrast  l)etweon  the  course  of  Brazilian  and  of  British  Authorities l'X\ 

At  Liverpool 134 


CON'TKNT.S. 


VII 


89 

m 
m 
m 

89 
90 
91 

1)1 
ill 
'.(•i 
'.•2 

'.t:t 
'.»:{ 
'.tl 

iti) 
111) 
it7 
it? 

IW 
iW 

itlt 
in) 
iti) 

1(10 

ml 
1(11 

KH 
lol 
1(1-2 

104 
104 

1(14 
107 
108 
1(H 
lOS 
10'.> 

io;> 

lOi) 
lOi) 
110 

no 

110 

111 
111 
iir. 
iir> 
11.') 
ii(> 

117 
118 
118 
118 

Hi) 

120 
122 
124 
125 
120 
127 
128 

i:w 

•r.jo 

i:<:i 

134 


X,— TiiK    Sr\iTfi;,    rm;    N\>ii\  ii.i.i:,    rm;    IJi  rciiu  iiox,    (iii:    'r.u.i.ui  \-sr.i;, 

A.Ni)  mi:  C  lilt  ixA.MAi  <;  \ \Xt 

Till"  Snmtvr l:'-"> 

At  C'maciia.  nt    I'riiii.lail,  at  .Martiiiii|ii'',  at  Cadi/ 1  :!.">- 1 :!(! 

At  (;il.raltar i:!i". 

At  Livciiiool i;«8 

Tho  NasliN  illo  at   Itiinnida l:!8 

at  S(>iitliaiiii>t(.iii l-'i) 

Tlio  T^ctiilnitioii 1  10 

Tli.'Tallalia-s.T I  l;5 

Tlic  (.'hickaiiiaiiLia 1  l"> 

XI. — Consii>ki;ai  ION  <>i-  mi:  ix  iv  i>y  (Jimm  I'iIM  i  ai\,  as  Iv  iaiii.i>iii:i> 
AM)  Ki:(  iKiM/r.u  \:y  iiii:  ■|'i:i:\i\,  iv  l>'ii.\i;i>  lo  mi:  Oi  i  i:.mii\(; 
Vkssf.i.s,   .\m>    1i>    1"aii  I  i;i:    i<i    l"ri.ni  i.    iiii.M    as    lo    lv\(ii   or   Said 

Vkssi:i.s 1  IC) 

PropoKiHiiiin  of  Idle 1  1(1 

Ml  ((sure  nf  iiitii'inilinniil  I'lllji I  Id 

Wiilcs  ut'  tlif  'I'l'faty  iiiiiit'iiiti\(' 1  III 

Ai>iili(ati(iii  of  till'  lii-l  Iviilc I  III 

Apiilical  ion  dl'  till'  sci'oiiil  and  tliinl   liiilrs 1  It! 

Tl !(•>('  K'uli'S  cniisi  itiitf  tlic  law  of  I  lii-;  coiit  lovci xy 117 

Ndtliiii'^'  ailiiii^-.ilili-  wliirli  diiiiiiiislifs  I  licir  force 1 17 

Tiu' olili'^at  ion  of  I  ileal   liritaiii  to  ohsiivi'  these   K'liles  wa-;  an 

iiiteriiatioiiai  one 117 

Tliis  oliliiiatioii  not  allee'eilliy   iiiteiiial  di.sdiliiuiou  of  powers 

of  llriiisli  (io\-eninieiir 1 17 

Nor  Ity  tlie  institutions  or  lialiits  ol'  tin-  ISrilisli  peoiile 1 17 

(iicat  I'liitain  sliould  liave  used  seasonalile.  apin-oiniate.  and  ad- 

e(|nate  means  to  pieseive  its  neutrality I  H 

Wliieli  should  Iiave  lieeii  avallaUlo  as  soon  as  rei|nired   1  IS 

I'.rilish  synipatliy  with  insuriicnts  an  (>leiin'iil  to  he  considered 

in  ini'iiariiiij;  means I  18 

( )i  her  (lenient  s  to  he  considered 1  18 

The  Midiiy  lit'  J'lilli'liiii/  I  iiliriiiltinnill   Itiihlims     \si;t  hij  t  i  I'lill  lif'ilil'iii .  .  1  li) 
Her  Majesty's  ( los  cinment  possessed  full  jMiwer  for  earryiiii;-  out 

its  selected  eolll'se  of  action 1  I'.l 

The  prerogative  ol  the  frown 1  l'.» 

Its  exercise  diirine-  the  I'ehellion Mi) 

Pre\ cntivo    jiower    inseparalile    fiiuii    the     idea    of    e\ecuti\o 

power l.')l 

reciiliar  ad\  aiita;^es  of  I  ler  3IaJesty"s  ( Joveriiinent  for  the  exer- 
cise of  executive  power 1."»2 

Omnlpotenei'  of  Fail i anient 1.'j2 

The  (Infii  of  llrmt  llrilniii  hi  i!x  trvaimnit  of  tlir  offiiidini/  rissils  Airi:K 

thi'ir jir-'il  ilhfiiil  oiiljil  und  ini^ajir  from  l!rili-:li  jmrls ir>2 

'  The  privih'u'e  of  exterritoriality  accorded  to  a  vessel  of  war  is 

political  and  discretionary 1")2 

It  should  not  he  acceded  to  a  lielli<;ereiit  not  recoj^iii/.ed  as  a 

poli:iciil  Power 153 

The  only  remedy  aj;aiiist  such  hellij^tn-ent  in  iieasi;  like  the  pres- 
ent is  the  remedy  against  the  vessels  themselves 15:5 

Great  lUitaiii  oiieht.  therefore,  to  have  seized  tin?  vessels l'>.\ 

Due  (Uliinii'T,  un  rniiiirvd  /»//  iJu'  thne  l>'iilri  of  the  Treaty  and  tliv  priii- 

cq)h'K  of  iiifiriialiiiiial  Ian-  nut  inronxlxtcnt  lliircivith 154 

After  proof  of  hostile  acts  on  neutral   territory  the  Imnh'ii  of 

])roof  isoii  the  neutral  to  show  due  diligence  to  prevent  them.  154 

Diliii'ciiee  not  a  teclinieal  word 154 

"Due"  implie.s  seasoiiableness,  approi>viateiiess,  and  ade([iiat(!- 

ness 155 

Ohjections  to  ISritish  definition  of  the  term 1.55 

Judicial  detinitions  hy  Ihitisli  and  American  Courts loii 

The  United  States  do  not  desint  a  severe  eoiistruction 157 

They  do  not  projiosi?  to  hecomo  <;iiara!itors  of  their  people 1.57 

The  Arbitrators  the  judges  of  what  constitutes  due  diligence . . .  157 


Yin 


C'ONTKNTS. 


PllgO. 

Nir.— 'I'lii:   I'Mi.riir,   i>\-  (iiii;\i    Ui.iiain    h.  I'm. in, i,  l\-  l)riii>,  \s  K>i.\ii- 
i,i,>«iii;i>   AM>   Ki  ( iniM/i.D  v.\    I  in;  'J'i!i;.\i  V,  (  ••N>ii'i:iii;i)    lro\    rin; 

V\cis l.V.i 

( 'nllNiiliTJllii'lo  dl'  ;;t'licrnl  :ilil>lic;ll  inli l.V,> 

Till'  \ oM'ls  (■(iiicrriiiiiL'  w  li(i>f  Mi'|>  I  lie  I'linti'iitioh  i> l."i',» 

I'llilillc  nriiiciil   111  it  ;i  ill  In  In  ill  II  it^  (il(li;;ilt  itill.s l.'i'J 

Ni7;lij;fii(i'  in  (ililniiiiii;;  inl'iiriiKitinii l."i'.t 

Nil  HtlU'Illl  llirilllS  III'   illlltll'llilllc  .H'lioll   lilIlN  i(l(  ll l(((» 

Nil  ;iiMicr.ii  iii>li  iicticiiis  fo  mil  ill  I  Mi  II  \  iniliiiirc Dill 

No  tpliiccis  iliiir;;((l  W  illi  ili.st  It  III  ill;;  illld  lilli  illtilillill;;'  lilOfffdiuy.S  . .  Kit! 

No  stcjis  ImIscIi  til  lircilli  lip  I  lie  lliislilc  .s\nIciii l('il» 

'I'lif  i<lt;i  nl'iiii  iiiti'iiiiitiiiiial  duty  tiiwiinl  I  iir  I'liitcd  .Statrs  rcji'dcd.  KJl 
Till' <dtli;;iiti(iiis  (it'(Jiriit  Ilriuiiii  were  iiidi'|M'iidL'iit  titsti'ii>  tiikcii  l>y  (iC- 

lii'ci's  of  till-  I  nil rd  St, 'it IS  in  (iinil   liiiliiin llil 

'J'lic  (io\  »'l  llllirlit  111'  till'  I  liilcd  Stillrs  ;d\\  il,\  .>  iliriir->t  to  lllililitaill  il»  du- 
ties ns  ii  iii'iitiiil Hil 

AlisriRT  ot' Miili  i'iirni'>tiii'>>  nil    till'  jiiiil   ol'iircMi  )i:it:iiii  ii  lii'i'iise  for 

till'  iU't>  of  liiiNtility  (  nliililiiilird  of Id;; 

I'll  ii  II 11'  111  ;isciTi;iiii  r.xtriit  ol  •-tilt  II I  my  uiid  prciiinatiM'  iiowt-is 111:'. 

I'll i lull'  to  r.M'iiMM'  till'  li'iiyiil  |iirrii,niitivr ItJfi 

'J'lir  l'iiri'i,i;ii-i;iilistnir!it  .\v\  wiis  an  insiiflii  iml  ini'an.s  fm  pi'i  tin  niiii;; 
iiitt'iiiiit  iniiiil  ilut  irs.  and   its  cl'iirary   was  diiiiinislii'd  liy  judicial  nin- 

strilctioli  mill  iitliiilll  lri|llilrllirllts .'. llil'i 

C'liiitiast  lii't  wi'i'ii  tliis  art  Illld   tlii'   .\iii(i  ii'iiii  Siiitiiti;  as  coiistriU'd  and 

iidiiiinistriid IdT 

I'ritisli  ri'liancr  ii|ioii  tin'  l'iini;;ii-i',iilistiiiciii   ,\i|   a   fiiiliiic  of  d'U' dil- 

ijiciici' IT'J 

'J'lir  iii';;l(ct  to  animd  tlic  I'uni^ii-l'.iilisi  nu'iil  .\i't  a  fiiiliiir  of  dm-  dil- 

ij^i'Iiri' 17;'. 

C'lintrast   lirtwri'ii   tin-   coium' of  (irnu    liiit.iin  ainl  the  Loiir.sr  of  tin' 

I 'nit  I'd  Statrs  in  tiiisi-   ri'siii'cis IT;; 

1 'nil  HIT  ill  diir  dilii;riii'i'  nil  it  tlir  i"-i'iii'i'  of  tlir  <  riii>ris 17."i 

In  not  dfliiiiiiii;;  oilriMlinn  ciiiisris  wlifii  nuaiii  i.i  liritish  ]iorts....  IT.'i 

Tiiis  olili;;iit inn  not  drti'iiiiiiird  liy  loininis^lonin;;' a  criiisi'i' irti 

In  not  ('xrliiiliii;^  cs  api'd  crnisris  Irniii  I'rilisVi  ]ioiis 17li 

Till'  ri'))risi'ii1atiniis  to  insaf^i'ut   a;;i'nts  ri'spi'i'tinu  ilii'si-  ('riii.si'i's  wi-ri' 

so  lnn;f  di'liiyi'd  and  .sn  fi'i'Mr  as  to  ainoiint  tn  Avaiit  nl'  diii'  dili;4i'iii'i'. .  17.^ 

Till'  l{rit isli  coiiiMi'  ih  tlii'si'  ri'spfcts  was  vnlniitaiy 1-1 

Till'  I'xcliisinn  of  jir'zi's  frnni  Jiiitisli  jioits  was  no  licni'tit  to  tln'  I'liiti'd 

Stiitis l-l 

Till' ii'sponsiliilit>    of  (iirat  Iiiitiiin   for   tln-si'  tniliiii's  in   din'   dili'^i'iur 

t'nnt iiini'd  until  tin'  rnd  of  tin'  rairrr  of  the  ciiiisi'is 1>'J 

No  <'\  idriiif  of  till-  I'Xi'liist'  of  dill'  diliiifiicr  .-iiliiiiit  tid  liy  (irrat  Jiiitain  1  "i 

A\'liat  \i'ssi'ls  nil'  under  tlir  Jiirisdict  ion  of  I  lir  J'l  ilniiial l^,'> 

XLII. — N.^Ti  i;i:  .\M)  A.miuni  m   Uamaci:.--  C'i..mmi:i)  i;\  iiii;  r.Mri;ii  .SrAii;s, 

1.   I'lrfatniy  roilsidiiatiolls IH! 

(iriii'ial  roiii'lii.sinn.s l^li 

(iicat  IJiitiiiii  i('.s)ioiisilili'  for  the  Il(■t.^  of  tin   ri  ni>ii-. ISti 

Measure  of  lialiiliry  <onsid<  red 1^7 

Claims  of  losses  set,  fnrtli  ill  tlie  .\meriean  ('ii.>e L-^T 

Tliese  elaiins  all  eoiiipielieiided  in  tlie   terms  ol'  tiie  Treaty 1>7 

V,'.  Question  of  Jiiiisdietion 1^8 

(ireat  I'litiiiii   eonteiids  that    the  ilaim.s  styl.d  ••  Indirect"  are   not 

•within  the  M'i)]ie  of  the  .Vrliilrat  ion Iss 

The  term  "  iiidiieet"  not  found  in  the  Trent y l-^s 

I'l joinder  of  the  I'nited  States  to  the  liritish  assiiiiiiitioii ]»S 

"  Indireet,"  as  used   in  this  eontrov  ersy,  i  •  ei|iii\iili'nt  to  "national"  l^-i 
The  word  "  indireet ,"  used  in  the  ne;ioliiitioiis  which  resulted  in  the 

Treaty. 1-".) 

I'sed  ill  the  same  sense  in  this  discussion ]^[) 

What  (laims  are  within  the  jurisdiction  of  the  Trihinial lsi» 

JRi'xiinn'  of  iie;;ot  ill t  ions  respect  iiij;'  Alaftaniii  (.'laims l5:".t 

Mr.  Adams.  NoM'mlier.  Ir&i,  asks  •'  redress  for  private  and  ii'i- 

tional  injuries" l-;> 

Liability  denied  liy  (iieat  Ikitaiii H',> 

I'nited  States  refuse  to  reliininish  their  claims I'.ti) 

Manv  claims  loili>ed  diiriii''  the  war.  Init  disciis.sioii  deferred..  r.)0 


CONTHNTS. 


IX 


l.v.t 
i.v.» 
l.v.t 

l.V.) 

l.v.t 
till) 
ll'lll 
liltl 

Kill 
K',1 

nil 
h\-> 
nr. 

im; 

ICiT 
IT-,' 
17:5 
i:;'. 

17.". 
17.'. 

ini 

17ii 
17. -< 

l-l 

1 
l-l 

1-J 

1     1  -.' 

1>"> 


1-C. 

isd 

1-7 
1^7 

l.'e.S 


iss 

IHS 

le.-i 
l^'.t 

l-l'.t 

l-".> 
l.-^'.» 


I'.H) 
I'JO 


XUI  — N  M  ri;i'.  \ni>  Amhin  i  <»i'  Kam  vci.s,  Ai'.  -('niitiiiiitil. 

K'i'Mx.iis  lor  calliii;;'  nil   tlii'  I'l.iiiiis  Alaliiiiiia  C'laiiii:^.. I'.X) 

III  April.  l"i'..''.  till'  I'liiti'il  Stiilc.s  ii'iicw  tlis(ii.>siini ll'O 

l,'r.s]i()ii>iliilil V  1)1'  (iii'al  iiiitaiii  ic-asscrtril I'.M 

Di'iiial  t.r  liaiiilily I'-'i 

Miiy,  l-^li.">,  tlir    riiilcil   Slatis  clji.-siry   rtaiiii>.  as  "  (liictt"  ami 

"  iiiiiiitti,"  ami  driiiaml  rriiaial  ion  fur  all U'l 

(iriMt    i.i'ilaiii  ilriiii's  lialiilily  liir  imliri'il   ami  ri'l'iisrs  ailiilia- 

tioii  lor  diiccl  claiiiis I'.M 

1,1  ml  i;ii-si'll  I  111'  aiillior  uf  ilii'  term  "Alahaiiia  Claiiiis" I '.••.' 

'I'llis   trrill  well  Klliiwii  ill  (  triolicr,  l^l'tl 1'.'- 

I.iilil  lilisscll  ]iri)]i(.s('S  to  li't  l.y;;n||t'S   lie  l.\  ndiii'-. i'l'^ 

Till'  r  hi  In  I  Slatrs  dcrlitii'  tii  \\ai\i'  any  nl'  t  ln'ii  claiiiis 1 '.'',' 

'I'lic  ."stall  li'y-.li.liiisoii  Con  vent  ion VXi 

'I' 111'  .Iiilinsi.n-CliircnilKn  ('niivi'iilii.n ll':'. 

I.iii'il  (iiaiiN  illi'  tliiiiks  it  ailiiiils  niiliinitril  ar.uuiiii'iil   as  In  tin' 

iMi'iil,  (if  till'  Alalia  ma  Claims \'X'> 

'I'liiis  Cull  VIII  til  III   niil  arci'j.taMr  to  llu'  I'liili'il  ."siah's i'.il 

Mr.  .loliiisiiii    iiil'iirms   i,iiiil  Clari'mluii   that  tlir   rnitiil   Slatrs 

liavr  claims  of  tlicir  ow  ii  on  (in 'at  iSiitaiii I'.M 

Sir  Milw.'inl  'riiiiriiloii  mlviscs  I, mil  ( 'larcmlun  that  the  Coii\cii- 
tiiiii  is   rcjci'tril   lii'cansi'   it    i.s   tliiiiij;lit    tli.'it    it   docs   not    iii- 

clmlr  the  imiiri'ct  claims I'.il 

Mr.  Mill  icy  inlorms  Lord  Clarcmloii  lliat   the  I'nitcd  .Stales  il.i 

not  aba  111  loll  the  mil  i  una  1  cl.iiiiis 1'.'.. 

And  that  tiic  .lolinsoii-Clan'iidoii  CniiM'  itinn  did  not  allord  snf- 

licicnt  I't'drcss  lor  till' national  injiirifs I'.*.'. 

'i'lic  imliri'ct  clainis  as  considi'ti'il  hy  Lord  *  lari'iidon 1'.'.'. 

I'lcsidi'iit's  nii'ssann  to  Congress  I tcccmln  r,  l"ii'.* I'.'ii 

Same  ill  l"'7ll '. l'.»i'i 

In  .la Hilary,  1-71 ,  the  words  "Alalia r  •'  Claim>    were  iimlcistood 
to  include  all  claims  of  rnitcd  .Siaies  a;;ai!ist   liieat    liiitaiii, 

liotli  national   and   imlividnal I'.MI 

.Nt'iiotiatioiis  oiieiied  .'it  \\'ashinj;ton IlK! 

licasiins  which  induced  those  iie;;otiations I'. Ml 

I'reliminaiy  inoiios.'ils  and  eoircspondeiic. li'T 

'i'lie  jiidiioscd  cominissioii  to  treat  of  the  "Al'ili.ima  Claims" I'.C 

I'liited  l-tati's  (,'onimissii)iicis  ai>]>iiinteil  and  coniiiined  on  the 

corresiiondcnce,  and  their  powers  limited  I ly  it 1'.'7 

'•'I'lic  Alaliaiiia  Claims,"  tlieAmeriean  Comniissioner.s  slate  their 

nnderstaiidinij;  of  the  mcmin;;- of  tliost'  words I'.H 

I'liev  iii'opose  a  mode  of  asceitaiiiiiij^  liie  amoiiiit  I'lf  the  daiii- 

ajies r.''.» 

And  that  ]iaymeiit  t  hereof  should  he  made !'.•'.• 

'I'llis  would  ha\(>   Iteeii  an  a  mica  I  de  settlement !'.•'.' 

I'.iit  no  waiver  of  any  cla.ss  of  uhiinis 1'.''.' 

The  i)ii.posal  dci'lined I'.i'.t 

Without   exception  to    the    dcliiiition    of  the    term    '•Alaliama 

Claims" I'.t'.i 

A  reference  proposed  hy  (ileal  lirilaiii 'JitH 

rnwillini;ly  aece])ted  liy  the  United  States "inn 

The  Treaty  of  Wasliineton •jiii) 

Meaninj.'  of  the  words  "amiealile  settlement" ','Oii 

Cliams  for  reference  iiinler  the  Treaty 'Jiiil 

'J'he  name  which  were  descrilied  in  iireliminaiy  correspondence 'Ji'i* 

No  waivoi'  of  indirect  claims yiMi 

l^.wer.s  of  tln3  Triliiiiial 'idl 

I'ower  to  assess  dama,ues  not  limited yni 

Views  of  .Mr.  Bernard. ;.'(ll 

Twelfth  .-irtielo  of  the  Treat  v -iOl 

Sir.StalVord  Xorthcotc .' •,'OJ 

Lord  III  lion *iil'J 

Mr.  IJunianl 'Jil'^ 

Kvidence  from  rrotocol  II t>0'J 

Debate  in  Parliament — Loid  (iranville "2**2 

Lord  Cairns  .says  the  indirect  claims  im  Inded  in  theTreafy ^o:'. 

«  His  eonstnictioii  not  ijitestioiied IJn:'. 

Lord  Hijxin'.s  views xjo:', 

Sir  Statford  Xortlicote yiil 


X 


CONTENTS. 


Pnge. 
'  XIII.— N.vTiiu:  ANMt  A:m()Int  ok  ])a:ma(;i:s,  iVc. — coiitiiHiwl. 

Ciiiicliisioiis 2or> 

Tlio  AiiKM'icaii  C.'isc  stuteil  the  claini.s  in  the  liin,;;iia{;e  of  the  Joint 

llif;ii  Coniinissioncrs '20't 

Lonjf  delay  in  objecting  to  it  by  (ireat  ISiitain "JdO 

Snpi>ose(l  concessions  to  United  States  in  Uie  Treaty '2{H'> 

The  Kuhvs *i(i() 

Expiess'rii  ot'  regret "JOt; 

Fenians .' rjliO 

Conchisions 207 

Lord  (iranvilh;"s  speeeli ',>(W 

Explanation  of  the  niisnnderstanding '20'.) 

lirxiinu' r*lli> 

Arbitration  takes  tlu^  jdaco  of  war 210 

The  Tri1)nnal  the  jndgc  of  its  own  powers 210 

Pradier  Fodrre 210 

("alvo 210 

Mr.  ^lontagne  ]5ernaril 211 

:?.  Measure  of  damages 212 

liiiles  for  measuring  damages   212 

Severity  to  he  sjiown  to  the  wrong-doer  in  ehdnis  fonndud  on  torts.  212 

Tlie  aninnis  of  the  wrong-doer  an  element  of  danuiges 212 

The  relation  between  the  injury  and  its  cause '21:? 

Whether  the  natural  result  of  the  wrong-doer's  act 2l;> 

Damages  should  be  an  indemnity 21."> 

AVhether  so  or  not  a  (j  nest  ion  of  fact 21."> 

Apidication  of  i)rinci])les 21.") 

As  to  jtersonal  iujuiies 21.") 

As  to  iirojierty  of  the  I'nited  States  destroyed 21.') 

As  to  property  destroyed  and  injuries  inllicted  niion  citizi-ns  of 

Ihel'iutetl  States 21."> 

As  to  expenses  in  puisnit  of  tlu'  cruisers 21() 

Alleged  eondonenient  by  the  United  States 2^ 

The  arbitration  substitutes  damages  in  the  place  of  reparation  bv 

war '.  218 

Tvejdy  to  Arguments  in  the  lUitish  Counter  Case 218 

Indemnity  should  follow  injury 220 

Award  of  a  sum  in  gross 220 

Jt  should  include  interest 220 

Case  of  the  Canada 220 

Award  under  the  Treaty  of  (Jhent 220 

Awiird  under  the  Jay  Treaty 220 

Contingent  reference  to  assessors 220 

Claims  of  private  persons 221 

The  indirect  claims 221 

Eiduiuced  rates  of  insurance 221 

Transfer  of  United  States  eonunercc  to  British  Hag 221 

I'rolongatiou  of  the  war 221 

Whether  too  remote  for  consideration  to  be  deterudned  by  the 

Tribunal 222 

M''ws  of  Mr.  Pradier  Fodere 222 

Cleneral  considerations 222 

The  United  States  do  not  desire  extreme  damages 2'2'.\ 

The  jurisdiction  of  the  question  belongs  t(»  the.  Tribunal 221$ 

Without  an  adjudication  upon  it  there  will  not  be  a  full  settlement 

of  all  dilfereiiees 221 

Conclusion 224 

NoTK  A. — Onsi'.iiVATiONs  ON    Ckiitain   SricciAi,  CiMTicis?,[^<    IN    riir,  Biiinsii 

CouNTKi!  Cask  ox  tiik  Cask  oi"  tiik  Un i ri;i)  SrATKs 220 

1.  The  British-Foreign  Enlistment  Acts 220 

2.  Anu'riean  nentralitvin  l/iKl-'lM 227 

;i.  The  United  States  and  Portugal 228 

4.  Nassau  in  December,  IdOl,  and  January,  ldli2 229 

NoTio  B.— ExrRAf'T.s  vkom  VARfOT's  DF.nATKS  IN  THK  Pari.iamknt  ok  Grkat 

BlMTAlN    liKKKliliKI)    TO   IN     TIIK  FoHKtiOlNG  AlidUMKN T 231' 


lit 


2or> 

20") 
•20t> 
2()() 

2(»r> 

2(i(> 

2(10 

207 

2(IH 

2(l!> 

21  nt 

210 

2l(> 

210 

210 

211 

212 

212 

212 

212 

21 :? 

211? 

21  r> 

215 

2ir> 
21  r> 
2ir> 

21.'> 
21<> 
218 

21 -s 
218 
220 
220 
220 
22(» 
221  > 
220 
220 
221 
221 
221 
221 
221 

222 
222 
222 
22:1 
22:? 

221 
221 


22G 

22r. 
227 

228 
229 


VT 


231 


CONTENTS.                    .  XI 

Pnjio. 
NOTK  B.— ExTKAcrs,  &(•.— Contiiiiicd. 

1.  'J'lif  I'orciiiii-Kiilistiiiciir  Act  (if  .Inly  :'..  l-li> •»:U 

2.  Liird  Altliorii's  luotiDU  tV)i  tlie  n-pt/al  nf  llif  FttiiMj;ii-Hiilistiiu.'iit 

Act ^;:!l 

:i.  Tlie  an'iiir  at  Tcrcciia 2:!  I 

-I.  Tlie  Fuivinn-KiilistiiuMit  Act  of  Aiijiust  1>.  l~To 2:i() 

.">.  Tlu;  Treaty  of  \VasUiiij;tuii 'j:'.;> 

NoTi;  C. — Mkmokamxm  nr  ('i)i;i;i'.>ri)Ni.i;N<  k   am>  ]>(irrMi:M-;  l.'i.i.viiMi   lo 
TiiK    AMi:M)Mi.Ni'    (ir     iiii:    Km.i.i-ii    l"i>i;i;i(;\-i;M.i>i  mi.n  1    Acr. 

18()l-71 242 

NOTK  D. — CONSIDI'.IIATIOX    or   Till',    CLAIMS    AlilSINci    I\      IIIK    DlSTi; ,  (  Hi  iN     of 

Vi'.ssi.i.s  A.\i>  I'KKi'KiM  V  r.v  nil:  Si;\  r.KAi.  (  i;i  im:i;> ijl-^ 

Detailed  statcnieiits  lia\  e  lieeii  ]iiesiiite(l o.\i^ 

With  tlu!  evidence  fiiriiisli(d  by  tlic  claimants  to  sii)>iiort  tliem ','18 

Tlie   I'nited  States  desire  an  award  of  a   Mini  in  <;i()ss  on  the  evi- 
dence [irescutcd 2H 

IJritish  criticisms  on  tliis  evidence -Jl-^ 

The  answer  to  such  criticisms •Ji;i 

Injustice  of  tlie   Itiitisli    estimates  of  the    salne   of  the  \e>sel.s  de- 
stroyed   •.'!;» 

Trices  olitaiiied  under  forced  sahs  no  criterion 'j.'id 

Wlialiiiii'  and  lishimn'  vess(ds " •.'.")!) 

Letter  of  Mr.  t'lapo' 2.M> 

rrojierfy  destroyed 2.'il 

How  }iro\e(l •3'i\ 

Oil  ('V  tish  destroyed  011  whalers  or  lishin^- vessels 2.''il 

1  Vrsonal  etfeets. .' 2.'>2 

Claims  of  insurance  eomiiaiiics o.'ii 

No  doiblc  claims  sn|i]iorted  liy  t  he  I '  11  i  ted  States •>:)■> 

Charter-iiarties  or  fieij;hts ■,'.'.;! 

Loss  of  iiidlits '. J.'i:', 

A  part  t)f  the  ilaiiiau'es  in  act  ions  in  tort 2.">;> 

ilreaUiiiii  ii|)  voya;;es  of  whaliiiii-vessels •,>.■■);! 

Claims  of  tlie  oflicers  ami  crews , .  2-'il 

II. 

ARCl'MENT  01{  SIMMAUV,  S1I()WI\(;  Till;  I'OIN'IS  AND  RKFKl.'HINf;  TO  THE 
EVIDENCE  ]M:LIED  IT'ON    I'.V   THE    (it  iVEK'NMKN  T    ( »F    \IIAI    UKITANNK,' 

MAJESTY  IN  ANSWER  TO  THE  CLAIMS  <tF  IHE  INITED  STATES  I'l.'E- 
SENTED    TO    THE    THIl'.CNAL    OF   AK'lillK'ATIt  tX   (JONSJI TFTED    IXDEII 

ARTICLE  I  OF  THE  TREATY  (  (»\CUDED  A  I'  \VAslli\(.ro\  ( )N  niE  -in 
MAY,  1871,  liETAVEEN  HEK  IIRITANNIC  MA.IE.s'lY  AND  THE  I  NITED 
STATES  OF  A.M  ERICA. 

Scope  of  the  Ailiitiatioii 2.'',> 

Course  of  proceeding;'  to  lie  follow  ed  liy  the  Trili.inal 2."il( 

Vessels  to  which  the  claims  of  tlu-  I 'nited  States  rclati' 2iiO 

Nature  of  llie  Ai'j;umeiit  on  the  part  of  (ireat  liritain 2til! 

The  Sumter,  Nashville,  Talluhassct\  Cliickaiiiaiij;a.  and  Retrihutioii 2(i;{ 

The  Clarence,  Tacotiy,  Archer,  and  Tuscaloosa 2iil 

The  Alaliami'.  Florida,  Georiria,  and  Sheiiando.ih 2tll 

Suhstaiice  of  eharjics 2(1-1 

(leueral  principles  of  International  Law  in  force  when  the  tacts  iHciiried.. .  2(1."> 

The  three  Utiles  of  the  Treaty  of  Washiuf^toii 2ti7 

Meaniiifj,'  of  the  words  "  rea.sonublc  ffroiuul  to  believe" 2(iH 

"Due  diliKeiiee"'. 20^ 

Ihitish  law  and  jiowers  of  the  Executive  in  (Jreat  llritaiu 2(il> 

Facts  wiiicli  must  bti  proved  before  au  award  can    be  made  against   Grejit 

Ikituiii 27:? 

The  Florida 27  4 

The  Alabama 27<; 

Thv  Georuia 2"^ I 


XII 


CONTENTS. 


Alt'W.MKNT  l>l'  Sl'MMAia  .  \  I'.  —  C'ollt  illllcd. 

'J'lii;  Slit'iiainliiali 

Concliisioii  as  to  tlie  Florida,  Alal)aiiia,  (icuiiiia.  and  Sliciiaiiiloali 

(icncral  coiirsf  |»ursMi'd  l)y  tlif  I>ri\  ish  (JoNcnuiii'iit  in  ii'gard  to  tlio  l■e[ll•t.'^sL'll- 

t  at  ions  iiiadc  liy  Mr.  Adams 

(Miarnv  that  tlif  ainiamtMit  of  ci'itaiii  vessels  was  jtroeiired  I'loinCireal  Jlritaiu 
Cliaijie  tliar    the    crews  of  eeitain  vessels  were    ])aitly  eoni[i()se»l  of  iSiitish 

siilijeets 

Cliai'jre  as  to  Confederate  Ai^eneies  in  (ireat  Uritain  (iirwar  ^nrjioses 

('oni!)laint  that  Confeih'rate  einisers  \  isitiii,;;-  Jiritisli  [lorts  were  not  seized 

and  iletaiiied 

.Con!i)laini  as  to  hosjiitalilies    aeeorded   to    Coni'ederate   cruisers  in  Ihitish 

]iorts 

L'eview  of  the  t'.ronnds  on  a\  liich  the  (lain is  of  the  I'nited  States  rest 

Cliaiactcr  of  the  claims  of  the  I'uiteil  States 

01)ser\  ation>  on  the  iniu(i|de  and  nn-asure  ol'  conqiensation 

( 'onclnsion 

Annkx  a.     CoMMiNK  a  rioNs  nin  wi:i;n  Tin;  liiiiMsii  am>  A.mkimc  ax  (Jov- 

KliXMKXrS    DUIMXG    IIIK    ClVlI.  WaI!,  Willi   li'l'.l'KIiKXt  T.    K )    IIIK    SrArKoK 

th;,  NKtTi!Ai.irv  Laws  oi  (inivvr  liuiTAix 

AxxKX  IJ.      I'lM.xc'ii  Ti!AXsi,ATH)\  or    iiii:  TiiitKic  Eii.ios  ix  Aktici.k.  \  I 
or  rin:  Tin: at v  oi    A\'asiiix(.tox 

AxXt.X    C.      Ii'i;i'ol!T    OI'     lllK     CoM.MlTTKi;    A  I'l'OlXrKI)     liV      lIlK     liOAl!!)     Ol' 

Ti;a;)i; 

Cla-isA 

ChlfS  I] 

Cla»C 

(lass  1)  

(lass  K.  1 

Correction  and  cunil)ination  ot'  allowances 

Summary 

I.  As  to  the  vessels  and  out  fits 

II.  As  to  freijihts  and  earniiij;s 

III.  As  to  the  car;m>es 

1\'.   A>  to  claims  lor  damages  and  ]iersona]  efteets 

\".   Kcsnlt '. 

Note> 

Tahle  No.  1.  showing'  proeressivo  increast^  in  the  amount  of  claims 
for  losscji  iiuurred  throu,^li  tin;  respective  cruisers  as  stated  at  dif- 
ferent jn'iiods 

Tahle  No.  '2.  showing;-  the  result  of  tlu'  ciu'rections  and  re-ai»i)ro]Mia- 
tions  of  the  claims  and  the  corresjiondiiin'  all(nvan<-cs  in  summa- 
ries Nos.  1.  '■>,  and  o,  of  I'irst  Keport,  in  accordanco  with  remarks 

in  j>resent  Reiiort 

Tahh;  No.  :i.  Showing,  under  respective  divisions  of  classes,  intoest. 
and  cruisers,  the  claims  advanced  under  the  Kevised  Statement, 

to^iether  with  the  .lUowances  to  meet  them 

Table  No.  4.  Showing'  the  \essels  ca[)tured  hy  the  Alahama.  the  \t\hi- 
ation  the  cajitors  ]ilaced  on  each  vessel,  the  allowance  deemed  ad- 

eiiuate  tor  each.  iV  c 

Axm:\  I>.  FrnTiiKi!  Notk  ox  1111;  C^i.ai.m  I'IM'skxtki)  itv  thi:  OoVEiix- 
Mi'.xr  OK  Tilt;  I'xiiiri)  ,Stati:s  roi;  K\i>r.xiUTt'i!i;  Aii.Ktiri)  ro  iiavi; 
itKKx  ix(  I  i!i!i'.i>  in  iTir,  rriisrii  and  ('Ai-Trin;  oi'  Coxikdi.katk  Ciais- 

Ki.'s.     Eii'oi;ts  maki:  T(»  cAiTriti.  Coxit;ih;i;aik  Ci!Itsi-,1!s 

Alahama 

Flori<la 

( o'ori^ia 

Shenandoah  

lnadei|iiacy  and  want  of  eonci'rtof  Inited  States  naval  force  ahroad,  iVc 

l^lrrors  in  the  synopsis  of  orders 

Admiral  Wilkes's  llyi  io-  s(|uadron 

^liseellaneon>  eases 

\ander'.iilt 

San  .lav  '.nto 

Aujiusta 

1  ).'icotah 

Nia<i;iri; 

Money  claims — further  ahateinents  sii,i;j;ested 

Coiiclii.sions 


Pas; 


:!(i4 


:'.()ii 

:!1.-) 
;!•,'! 
;'.;!:{ 

:i;!ii 
:!:!•-> 
:5:'.o 
;?:v- 

:?:!;• 
■MO 
■MO 
•Ml 


■M2 

■m:) 
:!Ui 
■MS 


:;."() 
:{,->4 

:!.'.(; 
:{.v.» 
:!(iii 
:t(i-.i 
:{():{ 
:!ti:5 
:!ii4 
:{ii4 
;!(i4 
:!(i4 
:{().-. 
:5-o 


OS,-) 

•J'.ll  I 
•MA 

:'.(i4 
-.'.nl 
:io: 


•.ur) 
;iv!l 

-.i-iC) 
'.V.iO 

:v.v,> 

;v.«) 
:',:«> 
:5:!;t 

:M0 
;'.4i 


:,\-2 


■m:, 


:!Ui 


•348 


:?r.4 

:!.v.t 

•.!i;4 

:'>('>4 
:«; » 

;}70 


CONTENTS.  Xlir 

iir. 

81TPLEA[1:NTAUY  .STAri:.MK\TS  OR  AlMl'MKN  IS  MADH    I'.V   TilK    RK- 

si'KCTivE  a(;hnts  (>i;  coinsiil  sri!si:(^»ri:MLv  to   filinc;  tiu; 

AUUUMENT.S  ACC'OKDIM;  to  Tin:  I'liOVI.SlONS  OF  I'llE  TKEATV. 

Til?;*-. 
I.— Statkmknt  <>i'  Sii!  li'oixnr.i.i,  T'ai.mi;!!,  madi:  \v  iiii:  Sr.vKNTii  C'o\- 

1  KItK.SCK,   DX   Tlir.   ViTTH   JiNi;.  1^7"i IC) 

I'oiiits  1I1I011  which  he  desires  fiirtlier  iirj;iiinenr '.M'y 

II. — Kki'lv  or  TiiK  C'(HNsi;r,  of  tiik  I'Nm-.ii  Staiks  in  K'K^roxsK  to  tiik 

roi!i;(;oiNii  Stati:.mi:m-  or  Siii   IioiXDi.i.i,   rAi..Mi:i: :?7() 

Koason.s  Avhy  riiither  arguiiieiit  shouhl  not  he  ordered   iit   this  stage  of 

the  i»i'ocee(linu;s '.'.T*) 

111. — Aiicr.MK.NT  or  8n:  IJoindkll  1'ai.mi.i:  on  ttu:  Qikstion  of  '"Di  i: 
Dir.KiKNtF."'  ■•Tiik  Effkct  of  Commi. -^ions  irox  tiik  I\s(I!gknt 
Ci;iisKi!s,'-  AND  "Tiik  .Sifi'i.iks  of  Ct)AL  to  sixn  Culiskus  in  J5i;iiisii 

I'ouTs"' :3«r) 

1 .   Oil  the  (iiKytinii  of  Ihie  J)iliii<ii(('  ;/rii trail ij  coitfi'uh r<<l ;!"'") 

Oh  tlie  soiiiees  ot'  the  obiij^athiii 'A^'t 

Jiiih's  and  jnineiides  of  liiteiiiatioiial  Law :{i^5 

Exjiress  or  inii)lied  eii^a;fi'iiieiits  of  (Ueat  ISritaiii 'A>^7 

J'.t'fect  of  prohibitory  nnuiieiiial  hiws tJ-'H 

Tlie  three  Utiles  of  tln!  Treaty  of  Washin,!j,ton :5^'.> 

(u'ueral  i»riiiciitles  for  fiiidiiij;'  what  dilin'iMiee  is  due ti'.XJ 

'i'lu'  iiiaxiiiis  cited  by  the  1,'iiited  States  from  Sir  R.  rhilleiiKne       ;UM) 
For  what  purposes  Great  IJrituiu  refers  to  her  niiuiieii)al  laws. .       'MA 

Doctrine  of  Teteiis MA 

Iiiliiiciice  upon  the  .(iiestion  of  dili,nenee  of  the  ditVerent  forms 

of  National  (ioverunients ?>9\ 

Ctbjeetions  to  any  tlieory  of  the  diliu'eiiee  iliio  from  iieiilial  (iov- 
einmeiits  which    involves  a  universal  hypothesis  of  arbitrary 

power ;5'.'4 

Ari;uni(.'iit  of  the  United  States  as  to  tin.'  nceessity  of  a  reliance 

on  prerogati\e 395 

Aijiumeiit  as  to  preroj^ative  powers   belonging    to   tlie   Jhitish 

Crown 3',C> 

True  (U)ctrine  as  to  powers  of  th(!  Crowj,i '.'■'.•7 

American  view  of  an  «  ^/it'i/'/ obligation '.'>'.'d 

The  Uritisli  Crown  has  power  to  usi;  the  forces  of  the  realm   to 

stop  acts  of  war  within  British  territority 3'JD 

The  assertion    that   (ireat   JUitaiii   relies  on  imnitive  ami  lujt 

preventive  law  disproved 4<K) 

Preventive  power  of  Ibitisli  law  explaiiu'd 1'"* 

The  doubtful  ]ioints  as  to  the  consti  uction  of  ihc-  liiitish  For- 
eign-F.n  list  men  t  A  it  never  alfectedthe  diligence  of  the  British 

(iovermneiit !l>l 

Baiiiit  IltamweU's  view  of  the  inici  national  as  distinct  from 
municipal  oblioution  aniecd  with  tiiatol'the  Aniciicaii  Attor- 

ney-Cieiieral  in' l-ll...' , 4"ii 

(!)!!    the  arguments  as   to   due   diligeiu'c  ileii\ cd  l:y  tlie  rnited 

States  I'ltuii  Ibreigu   laws 40'i 

On  the  comparison  made   by  the    I'tiited   Stali>   luiweeit    their 

own  laws  and  British  laws l(ir> 

Examinat  iiui  ot'  the;  )ire\  cnt  i  ve  powci  s  of  the  Auieiican  <  ioN  ei  ti- 
meiit  under  their  acts  ot'Coiis^fess  tor  Ihe  pn-seival  ion  ol'iicu- 

trality Hi-') 

Testimonies  of  Mr.  licmis  and  Mr.  Seward  on  this  suliject I"!) 

Aigument  from  the   Fcueign-Enlistment  Act  of  l>7n 40*) 

Illustrations  ot'  the  doctrine  of  due  diligence   Irom   the   history 

of  the  Fnited  States '.. '.       410 

Arguments  of  the  rnited  States  from  sugge>ted  det'ects  in  the 
administratiM!  machinery  ot'  British   law,  and  from  the  evi- 

<leuce  reipiired  by  the  British  (Joxcrnmeid IB) 

lueonsistency  of  (he  liitles  of  the  Treaty  with  the  rcquit'ement 
of   diligence    to   pi'e\eiit    where  there    were    not    reasonable 

grounds  of  bcdief Ilvi 

'i'he  Brilish  (io\  ernim'iit  took  actixc  and  spontaneous  measures 
to  ac(|uii(' all  i>roper  i.il'ni'iiiation  and  to  ))ievent  breaelies  (d" 
the  law II,: 


XIV 


CONTEXTS. 


Vago. 
III. — AiiiiiMKNi  or  Sii;  IJiirNOii.i.  r.vr.:\n;i!— Continiit'il. 

'Jliry  tolliiwfil  lip  all  iiiluniiiitioii  it'ctht'd  l>y  iirttpci'  iiKjiiirit's.  -ll;> 
NiLcssity  ami   iHDinii'ty  ul"  ^slM.•kil)J;•   fviilencc  from  those   avIio 

<;iv('  inroriiiai  ion 415 

Ml .  .Icllfi son's  IctttT  of  Sc]itfnilicr  o.  17ii;> .115 

Oiins  iiii)>os('(l  on  Hritisli  <laiiiiants   against  the   I'liitcd   Sliitos 

uiidrr  tlic  Trcaiyof  ITIM -115 

I'niturni  rclcrcnci' ol' tlic  ICxrciitivc  Aiitlioi'ities  of  the  I'liiteil 
siatts  ill  similar  cases  to  legal  procedureaml  theuuccssity  for 

legal  evidence 415 

*  ••Itiie   suggestion    tliat  tin' lielief  of  tlie  coiisiilsof  tln-Uiiited 

States  in  lUiti.^h  jioits  should  he'  treated  as  siitlieieiit  priinti- 

./((e/Vevideiiee 411' 

Tlie  ])i-eventive  eliicaov  ol'  tile  Aiueilean  law  tried  hy  the  tost  of 

liractieal  lesnlts 4'JO 

Tile  geiieial  result  )iro\-es  1  hat  many  failnres  may  haiipeii,  with- 
out want  of  due  diligence,  from  eanses  for  wliieh  Goveninient.s 

laiinot  lie  held  res]  ion  si  hie 4"J'i 

Attemjit  of  till.'  I'nitcd  States  to  cliange  tiie  onus  probaiidi  iu  this 

coiitrovei'sy -i'i'.^ 

It  is  a  transgression  of  the  K'lih-s  of  t lie  Treaty I'Jl 

Tin.'  law  of  mat  ions  does  not  justify  this  attempt 4"i4 

Tile  decision  ill  the  case  of  tile  i;ii/.ahetli  against  it 4'24 

^                         Special   r|iie.->t ions  i<Miiaining  to  he  considered 4'25 

'J'iie  alleged  duty  of  imrsnit.     TlieTerciMni  expedition A-^'i 

','.   Till    iljhf  of  the  loiiiiiiisKiiniK  of  tlif  Coiil'idrvntt  shipn  of  wiir  on  llirir  cii- 

inniif  into  Ilritisli  yidc/.s 4'2li 

Tile  true  const  met  ion  of  t  lie  firsi  I.'mIc  of  the  Treaty 4"i(i 

The  privih'ges  ol'  imlilic  shijis  of  w  .ir  in  neutral  ports 4'*? 

The  case  of  tlie  I'.xeliailge 4'2> 

Otlier  ant iiori tics 4-,'- 

The  IJnle  cannot  reiiniic  an  act  wrongful  liy  iiiti-rnatiomil  law 4'i'.) 

Tiicic  is  no  iiile  oliliging  ;i  neiilial    to  exclude  from  his  ports  ships 

of  tiiis  dcsci  ijition 4o0 

In  any  view  the  latter  part  tif  liul"  1  cannot  iipiily  to  the  Georgia  or 

the'  Sjieiiand'iah \ 4:{il 

Tile  distinction  >i4ggest   il  liy  the  I'liited  States  het ween  ships  of  war 

of  iccogni/ed  nation-  and  si.:,. s  of  a  non-recognized  State 4IU 

All  the  s]ii]is  in  <i  nest  ion  were  duly  commisNioneil  ships  of  war A'i'2 

?,.  On  -s/'^/j^^'cN  of  coal  to  i'unfiili'nite  rcKsrh  in  Jtritisli  [mrl-s 41>:! 

JJoth  jiarties  in  Ihe  wa;'  ei|na!ly  recei\  ed  such  supplies 41!:! 

Such  sit). plies  arc  not  witliin  tlie  rule  as  to  not  using  neutral  terri- 
tory as  a  hase  ol' operations 415)? 

A^"llat  is  meant  l>y  I  lie  words  "a  hase  of  iia\al  operations" 4;U 

^^  hat  is  not  meant  hy  tlioso  words 4I55 

('onse'|iiences  of  a  lax  use  of  the  jihrase 4;)5 

Kfl'ect  <if  the  addition  of  the  words  "  renewal  or  augmentation  of 

niiiitary  siiiiplics  or  arms" 4115 

Ptu'trine  of  Cliancellor  Kent 4I55 

President  Wa>iiiiigton's  niles  nnd  other  authorities 4:i(i 

Acts  of  Congicss  (')f  ITIU  and  I-IS 4:iti 

l!riti.-h  Foreign-Knlistmeiit  Act  of  l-l'.l 4:?ti 

I'ni\  crsal  nndcistanding  and  practice 4:57 

Intention  of  tlie  se((ind  IJiile  of  the  Treaty  on  this  poiMt 4:57 

]>iiti>li  rigiila lions  <if  January  :!1.  I"^!)',' 4;J7 

4.  I'riiiiipJis  of  aiiistriii  liioi  iqiiilicitlilc  to  tin  I'nlci^  of  tlii'  Tvvatij. 

Import.'ince  of  the  si'cond  and  tjiird  llllestion^.  as  to  the  principlesof 

construction  apidicahle  to  the  three  liiiles 415^ 

1  lilies  t'or  tin-  interpretation  of  pill  die  conventions  and  treaties 436 

Apidications  of  these  ]ninei]iles  to  the  interpretation  of  the  three 

Iviilc.^  as  to  tile  jioints  in  controversy 43',' 

Intluence   on    the  construetion  of   the  retrosjieetivc  terms  of  the 

agrcenieiit , 440 

The  admitted  intention  of  both  parties  as  to  the  seeoiid  Knle 441 

Inlliience  upon  (lie  construetion  of  the  agreenieiit  to  jiropose  the 

tliiee  Ixiilcs  for  general  adoiition  to  otlier  maritime  nations 441 

IV. — .\i!i;iMKNr  <i|-  Ml;.  ]-;\  Aiiiv  i^  Ukim.v  m  nn;  Sri:<i\i.  AiaiiMF.NT  of  Silt 

KotNin  I!    I'aiaiki! 44"i 

Seojie  of  tlie  disciissiou 44'.i 


415 

lir> 
-115 


415 

410 

4-iO 

4'>2 

4'i;? 
\->\ 
4-J4 
424 
4-25 
420 

421) 
4'>ti 

4->r 

4'2~ 
4-J~ 
4-i'J 

4:50 

431 1 

4;u 
4:?-J 
4:'.:! 

4;53 

4:?4 

4:55 
4:55 

4:?5 
4:55 
4  ".Hi 

4:?(i 
4:?i) 

,  4:57 
4:?7 
4;iT 


of 

ii'o 


43^< 

4'3'.i 

440 
441 


CONTENTS.  XV 

l\. — Ai:(irMi;.Nr  ui    ?tli!,  K\Ai;rs,  iVc — Continued. 

Due  .lili-vncf 44:? 

'J'lic  lilies  i.f  tlic  Tiiiity  till'  law  of  this  Case 44:$ 

Sir  IM'iilnn'r's  nttt/nipt  to  (lisi)aia,i;t' flit;  h'nlcs  cxiiniiniil 44:i 

How  far  tlic  'I'rilmnal  may  icsurt  to  tlic  IJnk's  of  International  Law. ..  41(1 

Sir  II.  I'almei'.s  inineiples  for  thf  coustruetion  of  Treaties  examined 44(i 

l^lleet  of  a  eomniission 44H 

I'nited  States  eonstnntion  of  the  i'".st  Kale 44s 

Klfeel  of  tile  words  "reasonable  ground  to  believe  '' 45(1 

'i'he  rules  of  law  respeetinj;'  the  ell'eet  of  a  eoiiiniission 451 

Kxteiit  of  the  ri,i;ht  of  exterritoriality  <;ranted  to  shijjs  of  war 451 

lieeo,i;nition  of  belligerency  not  a  recoj;nition  of  sovereignty 452 

Ai>idieation  of  the  ]iriii(iiileH 452 

Acts  done  in  violation  of  neutrality  are  hostile  acts 454 

The  neiitial  wliost;  neutrality  has  be(Mi  violated  is  under  no  obligation 

of  comity  to  the  violator 455 

Authorities  to  show  that  the  eonstnietion  in  neutral  teriittn'ies  of  a  ship 

intended  to  carry  on  war  against  a  belligerent  is  forbidden  by  the  law 

of  nations , 455 

The  ai)pli(aliility  ol'  liie  rnhf  to  the  (Jeorgia  and  tlic  Shenandoah 45-! 

Till'   (iiieNtion  of  coaling  is  a  branch  of  tiie  greater  question  of  the  use 

of  liritisli  ports  as  bases  of  hostile  oiieratifuis 45S 

'I'jie  doctrine  ol'  asylum  considered 45!t 

Analogy  lietween  the  duties  of  a  neutral  on  land  and  his  duties  at  sea..  45'.) 

laniitation  of  the  right  of  commercial  dealings  in  contraband  of  war..  lOH 

I'se  of  a  neutral  ])ort  as  a  base  of  hostile  opeiatioiis  ;   what  it  is 400 

In  the  case  ot  the  Xashvilh; 401 

In  the  case  ot  the  SlKMiandoah 4('>2 

The  f|nestion  of  the  use,  of  the  neutral  i)ort  as  a  base  of  hostile  ojieia- 

tions  being  established,  there  remains  tiie  iiujuiry  whether  the  neutral 

tlid  Ol'  did  not  exercise  due  diligence  to  prevent  it 404 

Such  proc('edings  ait^  not  mere  dealings  in  contraband  of  war 405 

SfatenuMit  of  the  Iiiiti>h  argument  on  tiiis  i)oint 40'.) 

The  arming  and  e(|uiiiping  the  cruisers  forbidden  by  the  law  of  nations. .  471 
They  should  therefore'  lia\  o  been  disarmed  when  thev  came  anaiu  within 

'      liritish  ])orts '. ', 472 

The  construction  of  the  IJiiles  of  the  Treaty 472 

Keview  of  Sir  K.  raliuer's  criticisms  upon  the  Argument  of  the  United 

States 473 

The  prerogative  of  the  Crown 474 

I'reventivi;  and  punitive  jiowers  of  each  tioverumeiit 477 

The  failure  of  (in.'it  Kritain  to  originate  investigations  or  proceedings..  47".) 
The  due  diligence  re(|uire»l  by  the  Kules  i.s  a  diligence  to  i>reveiit  a  lutstilc 

act ." 4H1 

Conii»aris()ii  Ix't ween  the  statutes  of  the  two  nations 4^1 

Till.'  burden  of  ju'oot' ,...  4"^2 

The  Terceira  alfair 4'-:5 

Conclusion 4-4 

V. — AiiiiiMr.M  OF  Ml!.  Cisiii.M;  in  IIki  i.v  id   riii:  Si'Kci.m.  Aiaii.Mr.Nr  ni'  Sii! 

IvDlNDKI.!.   r.U..Mi;ii l-^O 

Due  diligence 4-'7 

A  theoretical  discussion  not  wanted 4."<7 

Mews  of  Sir  IJober^  riiillimoiv IS'.) 

Mews  of  Sir  Koundell  rainier  in  the  case  of  Lairds'  rams 4',ll 

De  tin  it  ion  of  due  diligence I',t4 

Towers  of  the  (hown 4'J5 

Obligations  inijiosed  !)y   international  law  as  distingiii.shed  from  muni- 
cipal law 4'.tO 

Constitutional  form  of  the  liritish  Government 41)0 

Case  of  the  IJussian  ships lOi) 

Comparative  laws  of  other  countries 5(ll 

The  laws  of  the  I'liited  States  examined , 504 

Jurisdiction  of  the  Tribunal 50.:^ 

VI.— Hi:iTA'  or  Mw.  W.\ni:  to    iiik  Ait(ir:Mi;\T  oi'   Sut  1iihni)i:i.i,  rAi.MKU 
ri'ox   tin:   SricTM,   (j)i  i:stiux    \s   t<»  Sii'I'I.iks  ok   Coai.   i.\    IJitnisii 

I'oiJT.s  TO  Com  i.DKWATr.  Siirrs 51:5 

A  base  of  operations  essential  to  naval  warfare 5i:$ 

\Vliat  it  is 513 


■  I 


XVI 


CONTEXTS. 


VI.— Kri'i.v  or  M::.  Waiii:,  iSlC— C'diitimu'd. 

It  slidiild  iH)t  1)1'  ill  lieu  trill  tcriitdiy r>l:{ 

Tlic  iiisnif.'-t'iits  liiid  IK)  siu'li  biisc  witliiii  tlu'ir  u\\  ii  i.iritory .">I  4 

(irciit  liiitiiiii  knew  I  his 'AX 

Till!  ii(lviiiitiii;('.s  of  tlicsf  i'iicts  to  tlm  I 'nit  I'd  .States oil 

I'^liorts  ot'  tlic  iiisiiri;ciits  to  obtiiiii  liasL's  of  ojid'at  ions  in  iiciitnil  terri- 
tory    r)ir> 

Toleration  of  use  ciniivalciit  to  pcnnissioii .')!.'> 

Toli'iatioii   iniiilics  kuowlcil^^c ol"* 

(Jrcat  iiritaiii  liatl  icasonalilo  ^^roiiinl  to  hclicvc  that  tin;    iiisiiri;ciits  in- 

tfiitlcd  to  use  its  ]t()it,s .M," 

Their  cirectivc  vessels  of  war  (.'aiiie  from  Gieut  ISiitaiii r>ir) 

When  obtained  tliey  Aven;  nseless  without  abase  of  o]ierations ')l(\ 

Tiiey  niij^lit  have  been  cxeliideil  from  ISritish  ports old 

This  would  have  iirevcnted  tins  injuries  which  followed T  l() 

T'he  United  States  leqnested  Great  JJritain  to  jirevent  this  aljiiso  of  its 

territory olT 

firt  at  liiitaiii  refused  to  prevent  it olT 

Great  JUitaiii   eiieoiira.eed  the  nse  of  its  ])orts  by  the  iiisiirj^ents  for  re- 

]);urs  and  for  ol)tainiiij;'  jiro visions  and  eoal  ."1- 

All  this  constituted  a   violation  of  neiitralitv   which   entailed  responsi- 
bility   ; .'.lit 

^■II.— AiKif.Mic.NT  Of  Sii;  liotNDKi.i,  I'.u.MKi;  ().\   Till:  <^ri;sTiM.\  of  tim:  Kk- 

Clinr.MKNT  ()!■'  ilK.N  lOi;  TIIK  SlIK.NANDOAIl    AT  Mr.l.llOfliM: .V^(t 

VIII. — OliSKKVATIONS   AI)I)l!KSSi;i)   TO    THK    TlMIilNAI,    liY    .Ml!.   ('iSllINt;,  JN    Till: 

XAMK   OF  Tin;  Cor.NSFi,  of  tmf  UNirFD  Si  Ai  i:>.  ON  niK  21sr  Aiiii  sr,  ls7:), 

AN'I)  MfM01!AMMM  AS   TOTIIK   K.M.IST.M  FN  rs    Foil     tllF    SlI  F.\  A.NDOAIl    XV   MfF,- 

lioriJM-: .")."•,» 

IX. — AiMir.MFXT  OF  Sii;  Ii'oindfi.i.  I'ai.mki:  o\   iiif  Si'KciAr,  (j)ifsiio,\  as  to 
riii':  Li:(iAi,  Kimixt  oi-  tiif  i'..\ii!an(  i;  of    riii;   Fi.oniDA  inio  itik  four  of 

Molill.F,  Oi:  TIIF.  UKsI'ONSlIiU.ITV,  IF  ANV,  OI    tJliFVT  JiltlTAIN   FOI!    THAT  SIIII'..  T)Al 

X. — JvKl'LV  OF  Tin;  COINSFL  OF  TIIF  U.NUFI)  StATFS  to  TlIK  AlKilMKNT  OF   IIkI! 

lilUTANXIC  Ma.IFSTV's  C'OrXSEI-  ox  TIIF,  Sri.tTAI,  <i>rFSTION  OF  TIIF  LF(iAr-  Ef- 

I'FC  T,  IF  ANV,  OF  THK  T.XTliY  OF  TIIF  Fl.OllIDA  IXTO  TIIF  I'OltT  OF  Mol'.II.F,  AFTFl! 

FFAVIXG  Tin;  IJAllAAtAS,  AXl)  liKFOKF  MAKlXCi    AXV  CAI'TfltFS '\H\ 

XI. — AlIIHMFNT   OF    Sll!    KofXDKI.t,    PaI.MFI!    OX     TIIF    C'l.AI.M    OF    TilF    I'XITKD 

SlA  tFS  F01{  InTFHKST  I5Y  WAY  OF  DAMAiiFS ,"iO 

XII. — liFl'I.V    OX   TIIF    V\KV   OF   TIIF  I'.XITFl)  STA  IF  <  TO  Til  F  AlJdlMFNT  OF   IlFI! 

Jil.'ITAXXIC  MA.n.stY's  CofXSFF  OX  TIIF  Al.l.OWAXCF  OF  IXTFUFST  IX  'IIIF  COM- 

ITTATIOX  OF    IXliFMXrrY  FX  I  )Flt    111  F  TllFA  lY    OF   "W'ASIlFNMiTOX ."jO- 

XIJI. — (,'oMi'AiiAiTVF  Taiu.fs  i'i;i:si;xrFi)  nv  riiF  A(;Fxr  of  iiif  Uxitfd  STAri;s 

ON    TllF    r.lTIl    OF   AllilST,   l^T'i,  IX    CO.MI'I.IAX<F    WITH    TIIF    ItFI^FFST   OF   TIIF 

Tkiiuxat nri' 

XIV. — Taiu.fs  i'ufsfxtfd  f.y  thf  Acjfxt  of  IIfi!  JJihtaxnic  ]\lA.Ti;srv  ox  i  in: 

IUTII  of  A'dF.ST,  lS7-J,  IX  COMl'IJAXlF  Willi  TIIF  l!F(iFF.ST  OF   TIIF  TUIISIXAF.         GlO 
XV. — KfI'FY  or   Tl'F  A(iFXT  OF  TIIF  TXITFI)  STATFS  TO  TIIF  Xi;W  .MAl'TFl!  IXTIiO- 

DFCFD  iiv  Tin:  .KiFxr  OF  IIfi;   I.hitaxnk:   Ma.ifsiy  ox    iiif  cam.  of  tiif 

TltlliFXAL   FOl!  FI.'JCIDATIOX  IX    ItlO-FFCl'    To    Till;    TaI'.I.FS    1'1;FS1;XTF1  )    liVllIF 

two  Govfi!x.'\ifxis fi:;:; 

XNT. — A  XoTF  ox  so:.iF  Oi',sFi;\AH(!Xs  1'i;i;sf\ti;i)  uv  .Mk.  1ia\(  kofi  Daais  ox 
TiiF  '.'i'l'ii  Aidrsr (\:\~ 


r.'ipf. 


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X. 


ARGUMENT 


OP 


THE    UI^ITED    STATES 


DKI.lVKIiEO   TO 


THE  TRIBUNAL  OF  ARBITRATION 


AT 


( r  E  N  E  V  A 


JUN  E     1  5 


18  7  3 


Ic 


A\  e  have  the  honor,  sir,  to  be  your  obedient  servants 

C.  CUSHING. 
^YM.  M.  EVARTS. 
M.  11.  WAITE. 
J.  C.  IJA^x'ROFT  Davis,  Esq., 

Agetit  of  the  United  States. 


* 


r ' 


i 


A  11  G  U  M  E  N  T 


■INTIIOJJLXTION. 


r>y  tlic  fifth  article  of  tlio  troaty  of  "Wasliiii^ton,  it  is  proviiU'd  that, 
"  it  shall  be  the  duty  of  the  aj;ent  of  each  party,  within  two  a,„„„,„i  „,.„.„,. 
months  after  the  expiration  of  the  time  limited  for  the  de-  ;,V,v,'rH;'„T';''r '.,"','. v 
livery  of  the  counter  case  on  both  sides,  to  deliver  in  dupli-  "'  ^^'"'"'«"" 
cate  to  each  of  the  said  arbitrators  and  to  the  ajjent  of  the  other  ]>arty 
a  written  or  printed  ar<;uuient,  showing-  the  points  and  referrinj>-  to  the 
evidence  upon  whidi  his  government  relies." 

The  undersigned  have  had  the  honor  to  receive  the  instructions  of  the 
(rovej-nment  of  the  United  States  to  prepare,  an<l  place  in  the  hands  of 
the  agent  of  that  Clovernment,  the  argument  on  its  part,  contemplated 
by  this  article  of  the  treaty,  in  order  to  its  submission  to  the  tribunal 
of  arbitration,  as  in  said  article  is  jirovided. 

Jn  execution  of  this  «luty,  thus  intrusted  to  them  by  their  (Jovcrn- 
ment,  they  respectfully  i)resent  the  following  argument  on  behalf  of  the 
United  States,  eonformed  to  the  reciuirenu^nts,  in  this  respect,  of  the  pro- 
visions of  the  treaty  nnder  which  it  is  submitted. 

]»efore  entering  upon  the  argument  in  the  due  order  of  its  i)resenta- 
tion  anddeveIoi)nient,  Av<'  maj'  be  i>ermitted,Avitli  some  advantage  to  the 
correct  understanding  of  the  precise  service  whicii  we  hope  to  be  able  to 
render  to  the  arbitrators,  in  the  discharge  of  the  arduous  and  responsible 
duty  which  they  have  undertaken,  to  point  out  the  character  and  extent 
of  the  discussions  on  the  i)art  of  the  two  contending  nations,  which  have 
already  been  laid  before  the  tribunal. 

In  tlu*  ('ase  of  the  (_lovernment  of  the  United  States  and  in  that  of 
Her  liritannic  ^[ajesty's  goveinnient,  delivered  to  the  tri- 
bunal on  the  tWteenth  day  of  December  las^,  are  carefully 
set  forth,  in  consitleral>le  fullness  of  detail,  the  itrin(!i; 
matters  of  historical  I'act,  of  legal  i)ro])osition,  and  of  supporting  evidence 
and  authorities,  vt'hich  make  up  tiu>  body  of  the  controversy  submitted 
to  the  judgujcnt  of  the  tribunal  by  the  high  contracting  ])arties  to  tiu' 
treaty  of  Washington.  Jn  the  seven  vobunes  of  proofs  whicli  accom- 
])any  the  (.'ase  of  the  United  States,  and  in  the  four  volumes  which  iiold  a 
like  relation  to  the  Case  of  (Ireat  JJritain,  are  collected,  -with  much  else 
that  is  i^ertinent  and  important,  the  documents  of  the  diplomatic  treat- 
ment of  the  speeilic  controversy,  from  the  commencement  of  the  Ameri- 
can rebellion  to  the  conclusion  of  the  treaty,  exhibiting,  in  the  nmst 
authentic  form,  the  real  nature  of  the  differences  between  the  two  na 
tions,  as  they  showed  themselves  in  the  immediate  presence  of  the  events 
which  gave  rise  to  them. 

In  the  (Counter  Cases  of  the  two  governments,  delivered  to  the  tribunal 
on  the  lifteenth  of  April  last,  the  deliberate  criticisms  of  the 

adverse  parties  upon  the  respective  original  cases  have  al-        '  ""  " 

ready  advised  the  arbitrators  wherein  there  is  a  substantial  concurrence 
between  them  in  their  estimates  of  the  facts  and  the  law  of  the  matter  in 


II." 


AUOUMKNT    OF    TIIK    UNITKH    STATES 


JudKUioiit, and  wluTciiioppositoor  qualifying- (►jiiiiioiis  are  insisted  upon, 
or  are  reserv(!d  (or  fuller  treatnu'ut  in  the  ar;;iinieiit  i>rovided  for  in  tlie 
liftU  article  of  tlio  treaty.  The  vohnues  of  i)roofs  which  hav(^  been  pre- 
sented with  the  Counter  (Jases  s(Hini  desi<;;ned  either  to  supply  what  was 
thouj^ht  wanting  in  the  orij^inal  exhibition  of  proofs,  or  to  meet  tho(u»n- 
tentions  raised  by  the  respective  adverse  orij^inal  Cases  of  the  two  jjov- 
erninents. 

It  may  be  assumed,  then,  that  these  vohnues  of  proofs,  and  the  Cases 
and  ('ounterCases of  the  two  j^overnnuMits,  not  oidy  present 
.M.'r,or!r."n' '.H.w  iill  thc  uiaterials  necessary  or  useful  for  the  comi»leto  intel- 
lifjence  and. just  determination  of  this  ffieat  controversy  by 
the  tribunal,  but  have,  in  a  {jfreat  measure,  reduce«l  the  dis[>utation  be- 
tween the  i)arties  and  the  rcsi)on.sible  deliberations  of  the  arbitrators 
within  some«letinit(!  ami  established  limits. 

To  ascertain  these  limits  ami  verify  them  to  the  approval  of  the  tri- 
bunal, and  to  conline  the  subsecpient  discussion  rij^idly  within  them,  we 
venture  to  think  should  be  a  leadiuf;'  juirposo  of  this  arj^uinent.  Jf  that 
purpose  shall  be  successfully  adhered  to,  and  if  we  shall  be  able  to  array 
in  a  candid  tem])er  and  with  circumspect  and  comprehensive  ]>ertinency, 
the  considerations  that  shouhl  control  the  adjudication  of  this  tribunal 
U])on  the  issues  thus  raised  for  its  solution,  we  may  hope  to  render,  in 
aid  of  the  deliberations  of  the  arbitrators,  in  some  dej^ree,  the  service 
which  it  was  the  object  of  the  lifth  article  of  the  treaty  to  i)rovide. 

If,  liowever,  we  should  have  the  mislbrtune  to  fail  in  our  estimate  of 
the  true  points  of  the  controversy,  or  in  our  eiforts  to  meet  them,  as 
they  shall  present  themselves  to  the  greater  learning  and  intelligence 
of  the  tribunal,  such  error  or  misconcei)tion  will  not  be  remediless.  The 
arbitrators  may  at  any  time  before  their  deliberations  are  closed,  "  if 
they  desire  further  elucidation  with  regard  to  any  point,  require  a  writ- 
ten or  i)rinted  statement  or  argunu'ut,  or  oral  argument  by  counsel 
upon  it."  ^^  ith  any  such  requirement  it  will  be,  at  all  times  and  in  any 
form,  both  our  duty  and  our  jtleasurci  to  comi»ly,  and  we  shall  hold  our- 
selves in  readiness  to  attend  upon  the  wishes  of  the  arbitrators  in  this 
regard. 


II.-TIIK  ('ONTI(il\  EKSY  SLUnilTTI'D  TO  AllHITRATION. 


Thr  couiist'l  ot'  the  United  States,  in  inopoiindiii;;  to  this  iuif^iist  tri- 
Imiiiil  the  <iiii.s('  in  controversy  luitwoon  that  nation  and 


III.'  ail.ilniti.rt  111- 


we 


(hvat  IJritain,  which  its  (hilibcrations  arc  to  c.\i>k)ican«l  its  ;;:;^ ,,,.;:;;,'.',:,';'',;;,'' 
award  to  «h't<'rniinc,  hav«'  no  occasion  to  t'col  tliat  the  (!eh'-  •" '"I'l"  i  "> 
hrated  pnblicists  wiio  represent  tlio  frien<lly  initions  which  take  part  in 
this  f>;reat  arbitration  ar«^  less  instructed,  aheady,  in  tiie  p'lieral  char- 
acter and  history  of  the  public!  transa(!tions  which  are  to  form  tlie 
jiround-worlc  of  the;  arj;uin(Mit,  tlian  th  ^  (Muinent  |>nbli(!  s(>rvants of  the 
contendinji'  parties,  wlio  arcs  Joined  with  thetn  in  the  composition  of  the 
tribunal. 

If  the  i»ublicity  an<l  prominence  of  thcjse  events,  so  recent  in  tlie 
memory,  di«l  not  themselves  preclude  any  such  snyjiestion,  the  ample 
record  supplied  by  the  documents  presented  to  the  tribunal  by  the  two 
governments  has  put  the  arbitration  in  full  possession  of  all  fa«;ts,  and 
their  evidence,  which,  in  the  judj;inent  of  anyone,  can  be  thouj>ht  rele- 
vant to  the  discussion  of  the  princii>al  and  coUateral  issues,  to  whi<'h 
the  jud}j;ment  of  th»'  tribunal  will  need  to  be  applied.  In  pursuinj"', 
therefoi'e,  our  immediate  i)urpose  of  attracting  the  attention  of  the  tri- 
bunal to  the  elements  of  the  controversy  arising  between  the  two  na- 
tions, upon  the  actua'  events  which  gave  it  birth,  iuid  as  it  has  been 
shaped  for  the  investigation  and  devermination  of  tin;  tril)unal  by  the 
contending  parties  in  the  treaty  by  which  its  jurisdiction  is  createil,  we 
shall  have  occasion  to  consider  no  matters  whic^h  are  either  ol>scure  or 
disjui  able,  and  none  which  may  not  btj  drawn  with  the  same  conlidenoe 
from  the  documents  laid  before  the  tribunal  by  (Ireat  Britain,  as  from 
thos(^  jncsented  by  vhe  United  States. 

I.  VVhen  the  great  so(;ial  and  politi(!al  intt'rests  developed  by  the  in- 
stitution of  slavery,  as  it  existed  in  the  United  States,  (rar- 
ried  the  popular  agitations  beyond  the  bounds  of  obe- 
dience to  the  laws  and  loyalty  to  the  Government  of  the 
United  States,  as  set  forth  in  Tart  II  of  the  Case  of  (Ireat 
Britain  and  Part  ll.of  the  Case  of  the  United  States,  it  was  ,;.:,„;;;;;;'. 
not  long  before  a  great  population  occupying  a  large  terri- 
tory was  drawn  into  au  arnu'd  insurrection,  and,  as  a  next  step,  pushed 
iuto  a  military  rebellion  against  the  authority  of  the  (lovernment.  The 
strength  and  nu'uace  of  the  attempted  revolt  soon  grew  to  such  projtor- 
tions  that  the  (lovernment  had  recourse,  in  dealing  with  these  rebellious 
hostilities  urged  against  it,  to  its  undoubted  right  of  superadding  to  its 
l>eaceful  authoritj^  of  sovereignty  the  exercise  of  belligerent  powers.  It 
met  the  military  array  of  tlu;  lebellion  with  the  loyal  forces  of  the  na- 
tion, ami  used  all  the  means  for  its  sui»pression  winch  the  wealth,  the 
courage,  and  the  patriotism  of  the  people  placed  at  its  disposal.  Itself 
a  great  maritime  power,  both  in  naval  strength  and  commercial  pros- 
perity, the  resources  of  the  rebellion  included  neither.  The  Govern- 
ment, by  prompt,  adecpi  ite,  and  successfid  exhibition  of  its  naval 
strength,  shut  ui)  tlu^  wii«  e  sea-board  of  the  territory  in  rebellion  by  a 
blockade,  and  was  procet  dug  to  cut  it  ott'  from  all  opportunity  of  es- 


In  *'npr"''''»'.iria  nri 
u  nii'd  JM-urrt'.  ticm 
till'  I'rnlr.l  S(al<  s 
I'Xfri-iifd  bf!li«»  rent 
ipuwcrf",  :iiid  prrvcril- 
ed  Insiuyciils  lr<>i[l 
rryiUK  on  riiartt  itn** 
I   tlu'tr    uwri 


■^H 


8 


ARGIMKNT    OF    TIIK    I'MTKI)    STATKS. 


i.i,'(ti«'-»Ji«n.t*.l.  (Mil 
lirtlwtti^  no  p;n  tiiT* 


Ifl-vflitliiH 

..tl.i-r  iti.v<' 
•■  M.M.tr.ihl> 


tablif^liin,!;  I'oreiyii  commerce,  or  niaintaiiiiii,u  maritime  lio.stilities,  from 
its  own  resources. 

11.  The  principles  of  the  law  of  nations  recojiiii/i;  this  necessity  which 
the  vif>()r  ami  magnitude  of  rebel  hostilities  may  imjjose 
upon  tlie  government  of  a.  nation,  and  attiibute  to  a  resort 
to  its  biiligerent powers, in suclicase,  no conscjpienccs affect- 
ing the  attitude  toward  each  other  of  the  i)arties  to  these  liostilities. 
Other  nations  are,  manifestly,  no  parties  to  the  confliet,  and  cannot  be- 
come such  parties,  unless  by  choice,  whicli  is  inferrention,  or  by  the  en- 
largement of  the  theater  of  hostilities,  or  their  actual  course,  forcing 
upon  their  notice  such  questions  as  specilically  arise  for  solution. 

The  effect  of  inienrntion  is  unetpiivocal.  If  attempted  in  aid  of  the 
belligerent  sovereign,  but  without  his  request,  it  isofTicions, 
and  may  be  unwelcome.  If  in  aid  of  the  rebels,  against  the 
so\ereign,it  is  an  espousal  of  Iheircause,  and  an  act  of  war 
against  the  belligerent  sovereign.  In  such  a  case,  no  situation  of  ncntml- 
it II  arises. 

lint,  if  a  nation  abstains  fiom  intervention  in  tlu'coidlict  between  a 
1, ,.an,.nir„.i„.  sovcicigu  uatiou  and  its  rebels,  it  is  inaccurate  to  treat  this 
'h,,rl-'bti.'!ii^'.'  '"  '  ohxiiiunce  as  neutmlit!/.  It  is  sim]>ly  an  uid)roken  mainte- 
nance of  the  international  relations  which  subsisted  between  the  two 
l)0\vi'is  before  the  domestic  peace  of  one  of  them  suffered  disturbance. 
It  wctuld  sluK  k  the  moral  sense  of  civilization  to  speak  of  the  United 
{States  as  standing  natiyiil  between  (ireat  IJritain  and  tiie  Sepoy  rebel- 
lion in  India,  or  of  (ireat  Ibitain  as  stamling  neutral  between  tlie  com- 
mune of  I'aris  and  the  govermnent  of  France. 

lUit,  when  the  actual  hostilities  in  which  a  government  is  engaged, 
in  the  sup])r»'ssion  of  a  rebellion,  encroach  upon  the  estab- 
lished relations  between  it  and  friendly  powers,  the  latter 
have  presented  to  them  tlie(piestion  whether  they  w '11, each 
for  itself,  ac(|uiesce  in  the  exercise  of  belligerent  ])owers,  as 
'"""  sought  to  be  made  effective  against  the  rebels,  at  the  cost  of 

intefeieiu'e  with  the  peact'ful  rights  of  commerce  and  intercourso  which 
subsisted  before  the  nation  was  bi'ought  into  this  stress  by  its  domestic 
rebellion. 
Ibit  this  (juestion,  under  the  rules  governing  the  subject  inthenmdern 
law  ol' nations,  <'an  have  but  oueanswei'.  The  nation  which 
has  sui)eradded  belligerent  rights  to  those  of  sovereignty, 
is  entitleil  so  to  do,  and  resistance  by  other  nations  to  the  fair  couse- 
(lueiu'es  of  such  rights  n]»on  their  interests,  is  a  violation  <»f  the  law  of 
mitions,  and  an  unjust  inti'rvention  in  the  domestic  coullict. 

In  regard  to  the  hostilities  ju'osecuted  against  the  sovereign  by  the 
lebel.  if  they  shoTd<l  ])ass  beyond  the  bounds  of  intestine 
''I  wai'  ami  obtrude  themselves  uiK)n  the  mttice  ol' other  sover- 
..!■  eign  ])owers,  the  actual  occurrences  which  raise  the  question 
of  their  treatment  l)y  such  ]»owers  nmy  be  trusted,  also,  to 
sohe  it.  If  the  rebels  should  exhibit  their  strength  by  a  blockade  of 
any  of  the  ])orts  of  the  nation,  or  should  keep  the  seas  w  iih  cruisers, 
and  assert  the  right  of  search,  of  capture,  and  of  piize  condemnation, 
against  the  ships  or  cargoes  of  another  mition,  the  i>ower  thus  attected 
w  ill  determine  for  itself  bow  it  Avill  treat  this  new  disturber  of  its  i^eace- 
fid  rights  and  interests.  It  has  no  antvailcnt  obligations  of  friendship, 
of  treaty,  or  of  recognition,  even,  which  compel  it  to  ac<piiesce,  under 
the  law  of  nations,  in  the  legitimacy  of  this  viokMuie.  It  nuiy  i)ierce  by 
force  the  rebel  blockade  which  impedes  its  C(Muuu'rce,  resist  and  resent 
the  search  and  capture  which  threaten  its  maritime  property,  and  reject 


iilbiT  pd'.wr-liavL' 
iidt'ridf  in  *n(l»i-ar'ft 
uiy    wbi'tluT    Ihey 

niitM-cf  ih  the  f'X- 
niH,.  of  b.'l!iB*-ii'iit 
ii\«.-r-    bv    the   *;<.v. 


.  inl'Tvention. 


..•y<<inl        Triritiii 

111  !t-  ol  tilt-  f"I.\ 
MHIi  should  be  de. 
■d   ;,^  th-   VMIl^.'. 


CONTROVERSY    srUMITTKI)    TO    AHiUTRATIOX. 


9 


hytlic 
itcstiiic 

sovor- 
liu'stioii 
blso,  t(l 
Iviulc  oi' 

iiiscMs. 
Ination, 
litVoct('«l 

|i(lsl)ip, 
undor 

liice  by 
resent 
rojeot 


the  asserted  jjiize  Jiiiisdicttion  as  workiiij;  no  flinn,u'e  ol'  title.  And  it 
may  do  all  this,  without,  in  the  least,  takin;;"  part  in  the  hostilities  of 
tlu^  jioveininent  aj>ainst  the  rebels  or  esponsiny  its  cause,  but  simply  in 
maintenance  of  its  own  rij^hts  and  interests. 

rndoubtedly,  it  is  competent  f<>r  other  nations  upon  whose  notice  the 
hostilities  of  rebellion,  revolution,  or  revolt  may  obtrude  themselves,  to 
yield  such  assent  and  submission  to  their  exercise,  to  the  disturbance 
of  their  own  lijihts  and  to  the  disi»araf«enient  of  their  own  interests,  as. 
under  sentiments  of  justice,  fair  play,  or  humanity,  they  nniy  lind  an 
adtMpiate  motive  for. 

This  couise  tends  to,  and  imturally  results  in.  a  tacit  toler.ition  of 
this  violence  as  in  the  nature  of  belli'i'erent  power,  because 

it  is  practiced  in  that  sense  and  umler  that  Justification  by  •'  '  .m'''H't'm 

those  who  exert  it.  Thuicd,  then,  between  the  contending;  "-u"!''. ".ir/C'iivv 
parties  in  the  attitude  of  obligatory  submission  to  the  bel-  i''rul'-"  '>"i!','i''' "'.-. 
ligerent  rioht  of  the  sovereiijfn,  and  of  voluntary  t  )lerance  k.i'"v.'i'i«n>',n„ii.'v 
of  the  belligerent  practices  of  the  rebels,  other  )iatii)ns  fall  uv '.''',, 'nVh.r',i  i,.V. 
.gradually  into  an  eipiality  and  inii)a;  fiality  in  dealin;;  with 
the  rightful  belligerent  i>ower  and  the  dc  J'acto  l)elligerent  force,  which 
assimilates  itself  to  the  sfatKs  which,  betwei'U  two  rightful  belligerent 
powers,  is  called,  in  the  law  of  nations,  neutniJitif. 

This  i)rincii>le  of  jmblic  law,  which  we  here  insist  nixni,  that  is  to  say, 
the  yif/ht  of  i\  sovereign  engaged  in  the  suppression  of  rebel-  timsi.,,,,,!,.!,.  >.-, 
lion,    to   sui)eradd    belligerent   ])Owers   to  its  resources  of  >r,T'.'''''.r'7,r''m"' 

l)eacefid  authority  m   d(»aling    with  the  hostilities   urged  " " 

against  it,  and  to  exjject  from  other  nations  an  accei>tance  of  the  situa- 
tion, as  towiird  the  sovereign  so  engaged,  with  the  same  consecpuMices 
to  themselves  as  if  the  sanu',  belligerent  i)owers  wei'e  ])ut  forth  in  sol- 
emn war,  had  been  delinitely  held  by  the  Suprenu'  ('ourt  (»f  the  rnired 
States  in  a  celebrated  judgment  i)ronounc(  .  by  Chief  dustice  .Alarshall 
in  the  ease  of  Kose  r.  Ilinn^ly,  in  tln^  year  ISO,"'.  The  case  arose  upon 
the  exercise  of  belligerent  ])Owers  by  I-'rance  in  attempting  to  reduce 
the  revolt  of  the  ishunl  of  San  J)omingo,  and  is  reported  in  I  ('ranch, 
iSnp.  Ct.  ]{ej)..  p.  L'41.)  It  was  only  necessary,  therefore,  for  the  infe- 
I'ior  <'ourts  of  the  ITnited  States,  and  for  the  Supreme  C'oui't  on  tinal 
ap])eal,  in  establishing  this  in'inci[)le  of  public  law  in  its  o])eration  upon 
other  natio'is,  when  the  I'liited  St;res  were  exercising  1>e!ligerent 
l>o",vers  ill  supi)ression  of  their  domestic  rebellion,  to  follow  the  reason 
and  authority  which  had  been  accepted,  as  a  ruh^  of  the  law  of  nations, 
in  this  early  case.  \\\'  i-efer  to  the  Judgment  in  tiie ''prize  causes." 
rejjoiled  in  1'  I'dack's  Sup.  Ct.  liep.,  p.  (».'>."). 

III.  The  only  notal)le  instances,  before  the  rebellion  in  the  United 
States.  peih,ii>s  the  oiili/  iiistances,  in  which  friendly  nations  r,.M..,., ..-im,,.- 
have  been  placed  by  this  obligatoiy  recognition  of  belliger-  """"'"• 
cut  rights  in  the  sovereign,  and  voluntary  tolerance  of  belligerent 
powers  in  rebels,  in  an  attirude  assimilated  to  neutrality,  have  been 
where  the  c(»ntiict  was  of  subject  states  seeking  to  recover  their  free- 
dom, or  between  revolted  colonies  ami  llni  mother  country,  where  in- 
dt'pendence  in  position,  in  bounchiries,  in  inten'sts,  in  population,  and 
in  destiny,  already  existing,  in  fact  the  only  tie  which  rennuned  to  bo 
Slavered  was  that  of  political  sovereignty,  and  the  severance^  of  that  tie 
was  the  ordy  motive,  object,  operation,  and  expected  result  of  the  re- 
volt. In  sjudi  cases,  the  tendency  on  the  part  of  othcrnations  to  adopt 
a  practical  neutrality  is  greatly  prompted  and  facilitated  by  the  polit- 
ical nature  of  tlie  contlict,  and  the  further  consideration  that  the  inter- 
vening seas,  the  common  possession  of  all  nations,  are,  necessarily, 


10 


ARGUMENT    OF    TJIE    I'MTED    STATES. 


liiinatK't. 


incliuk'd  in  the  tlieater  of  tlie  uar,  and  iimst  l>('<'<>nie,  nioio  or  less,  tlio 
tbeator  of  actual  hostilitios.  I'loni  sucli  <'onHicts,  every  IVatniiMtf  do- 
mestic or  intestine  lebellion  is  ;<eeessaii]y  absent.  They  nre  as  dissim- 
ilar as  are  the  throes  of  na<^ural  hirth  from  the  violence  and  horrors  of 
mutilation.  This  dilference  asserts  itself,  at  once,  to  the  i>ublic  judj>- 
ment  of  other  nations,  and,  scarcely  later,  to  the  contending  parties, 
and  thus,  by  the  }>rogress  of  the  conflict,  a  habit  of  i)ractical  neutrality 
is  easily  establishe<l,  JUit  this  habit  imports  nothin.<>-  inconsistent  with 
n..iia.M,„.n„w.r-  the  princii)les  we  liave  insisted  upon.  The  allowance  by 
I'ml^.'"  Mfh'":  tliVh'.-  other  nations  of  bellij^enMit  methods  to  the  sovereign,  is 
"'"''■'""""""  obligatory,  systematic,  and  as  his  right.  The  allowance  of 
them  to  the  rebels  is  voluntary,  pro  re  iialtl  always,  and  ot  sutferance. 
IV.  In  the  lirst  moments  of  the  contlicit,  and  when  its  conliiieinent, 
as  a  domestic  rebellion,  within  the  territoiy  of  the  United 
^niTlirtiH  ..."'.l!;  States,  was  successfully  engaging  the  attention  and  the 
liniim, w,i. !;V,M"-r-  uaval  strength  of  the  (Jovernment,  tJreat  Britain  inter- 
vened, and  assumed,  by  an  a(;t  of  sovereignty,  exercised  by 
the  royal  i)rerogative  of  the  Crown  as  the  re])resentative  of  the  nation 
in  its  foreign  relations,  to  exalt  the  rebel  hostilities  to  the  same  level 
with  the  l)elligerent  rights  of  the  United  States  in  their  sup))ression, 
ami  to  place  itself  in  the  same  attitude  in  reference  to  the  conllict,  as  if 
it  were  a  i)ublic  war  wage«l  by  two  nations  in  their  sovereign  right, 
towards  whom,  under  (he  law  of  nations,  (Ireat  IJiitain  was  under 
equal  obligations,  independent  of  any  choice,  to  respect  their  belligerent 
operations  and  nuiintain  neutrality. 

The  circumstances  undei' which  this  celebrated  jn'oclamation  of  tin-! 
<i)ueen  of  (!reat  Ibitain,  of  the  Judgnu'ut  of  that  nation 
upon,  and  its  imrposes  toward,  the  conflict  pending  within 
the  territory  of  the  United  States  between  that  (loverniuent  and  the 
rebels  against  its  authority,  was  made,  are  s(;t  forth  in  I'art  11  of  the 
Case  of  the  United  Stat«'s,  pp.  4o-(i."),  and  in  Part  II  of  the  Case  of  Her 
Majesty's  governuH'nt,  pp.  4-'.>.  Our  i)resi'iit  purpose  in  reli'rring  to  it 
is,  merely,  as  being  the  lirst  ste))  taken  byCreut  I'ritain  in  its  relations 
to  the  conflict  in  tlie  C  lited  States,  which,  as  th.  y  showed  themselves 
throughout  its  <;ourse,  and  have  formed  the  subj«'ct  of  di[»lom;;tic  cor- 
respondence between  the  two  governments,  and,  finally,  of  the  first 
eleven  articles  of  th«>  treaty  of  Washington,  have  given  rise  to  the 
contentions  between  (Ireat  Hritain  and  the  United  States  which  are 
submitti'd  to  this  tribunal.  It  is  r.;;!y  in  its  bearings  upon  these  issues 
that  we  now  comment  ui)on  its  (character  ami  e(»nse([uences,  interpreted 
by  the  law  of  nations,  as  exhibited  in  the  actual  events  that  fol- 
lowed it. 

(a.)  This  proclannition,  issued  in   London  on  tlie  UJth  of  ^lay,  1<S<I1. 
wasv,.iM„t.ir.va,H;  ^^■"•''  purcly  voluutary,  and  anticipated  the  occurrence  of  any 
»nt»,i.at,.ry  practlcal  oeiMsion  for  dealing  with  any  actual  rebel  hostili- 

ties, which  had  invaded,  or  tiireatened  1(.  invade,  the  peace  or  dignity 
of  (Ireat  Uritain,  <n'  the  security  of  the  Miaritime  or  other  pi!»i»erty  <n' 
rights  of  its  suMJi^cts. 

{!).)  It  was  not  reipiired,  in  the  least,  in  reference  to  the  relations  of 

wa-m.t..-,iMr.,r  Creat  IJritain  to  the  United  States.     They  were  fixed  by 

t'wrl'r.he'l«"'j.i;  intercourse,  by  fiiendship,  and  by  treaties,  in  all  general  as 

""""""•  peets,  an<l  by  the  |>riiieiples  of  llie  law  ol'  nations,  ai»plicable 

to  the  new  situation,  which  we  have  already  insisted  upon. 

{('.)   It  had  ii<»  Justilieatioii   in  the  public  acts  by  which   nations  an- 

,,    nounce   to   their  people  and  to  the  world   their  sovereign 

purpose  to  take  i)art  in,  or  to  hohl  aloof  from^  a  public  war 


ll:i.l      nil     J 
tHill. 


t'ss,  tlie 
V.  oi  (lo- 
dissiiii- 
Tors  of 

c  ju(lj>- 
parties, 
iitiiility 
'nt  with 
nice  by 
•oij^n,  is 

auee  of 
IV'iance. 
iieiiieiit, 

IJiiitetl 
111(1   the 
in  iiitei- 
I'ised  by 
e  nation 
me  level 
nvssion, 
iet,  as  if 
;ii  riji'lit, 
s  niulei" 
Ilij»('ient 

)U  of  tin": 
t   nation 
«X  within 
ami  the 
11  of  the 
e  of  Her 
ins  to  it 
vlations 
uiselves 
i'.tic  cor- 
the  hist 
^  to  the 
lieh  are 
e  issues 
•ipreted 
hat   fol- 

;iy,  l.SC.l, 
■»'(»f  any 
liostili- 
■  »li;^nity 
»iu'rty  or 

itioiis  of 
lixcd  by 
iieral  as 
iplieable 

Itions  an- 
lovi'iei^n 
liblie  war 


CONTR(3VER8Y    SI  BMITTED    TO    AKBITRATION. 


11 


Ami    .h:.Mt!.Ml    tht 

v.-.ii  (.r.-at    llritaii 
ikI  lilt-  inxtirKentf. 


l!H.n.,t  upni,  til. 
int  nl  rartvirifi  ou 
war  itii  the  lii^h  .-^fUN. 


waj^ed  between  sovereign  powers,  and  thus  enable  their  subjects  tocon- 
lorin  their  conduct  to  tlie  purpose,  thus  i)roclaiined,of  their  {government. 
The  existence  of  a  civil  war  within  the  territory  of  a  nation,  certainly 
does  not  call  for  a  proclamation  from  other  powers  that  they  do  not 
espouxe  the  vtauseof  either  party  to  this  domestic  strife. 

((/.)  The  intervention  of  this  public  a(!t  of  (Ireat  Britain  produced 
certain  important  changes  in  the  moral  and  in  the  legal 
relations  in  which  its  subjects,  its  commerce,  its  wealth,  all 
its  manifohl  resources,  if  aroused  to  aetiv<'  interference  in 
aid  of  the  rebellion,  would  stand,  in  the  public  opinion  of  the  world,  in 
the  municipal  jiirisprudence  of  the  realm,  and  in  the  doctrines  of  the 
law  of  nations. 

So  long  as  the  rebellion  in  the  United  States  remained  unaccredited 
with  belligerent  rights,  all  maritime  warfare  in  its  name 
would  have  borne  the  legal  chara(!ter  of  piratical  violence 
and  robbei'y.  It  would  have  been  justiciable  as  such  every- 
Avliere,  and  punisiiable  according  to  the  jurisdiction  to  which  it  was 
made  amenable.  "  With  ])rofessed  pirates  here  is  no  state  of  peace. 
Tiiey  are  the  enemies  of  every  country,  and  at  all  times  ;  and,  therefore, 
are  universally  subject  to  the  extreme  rights  of  war."'  (Ld.  Stowell,  in 
case  of  the  Le  Louis,  ii  Dods.  Adm.  Kep.,  244,  124(1.)  "As  every  man, 
by  tliti  usage  of  our  European  nations,  is  justiciable  in  the  place  where 
the  crime  is  committed,  so  are  pirates,  being  reputed  out  of  tin  protec- 
tion of  all  laws  and  pri\'ileges,  to  be  tried  in  what  parts  soever  they  are 
taken."  "  They  are  outlawed,  as  I  may  say,  by  the  laws  of  all  nations, 
that  is,  out  of  the  protection  of  all  i)rinces  and  of  all  laws  whatsoever. 
Everybody  is  commissioned,  and  is  to  be  armed  against  them,  as  against 
rebels  and  traitors,  to  subdue  and  to  root  them  out."  "That  which  is 
called  robbing  upon  the  highway,  the  same  being  done  upon  the  water  is 
liiracy."  "  When  this  is  done  upon  the  sea,  without  a  lawful  commission 
of  war  or  reprisals,  it  is  downright  piracy.''  (Sir  Lionel  Jenkins,  as 
cited  in  1  I'hill.  Int.  Law,  §§  3r)(;,  ;{5S.)  The  interposition  of  the  (^.ueen's 
I)roelamatioii  relieved  from  the  terrible  ])roscription,  pursuit,  and  pun- 
ishment thus  denounced,  all  who  should  take  the  seas  in  aid  of  the 
rebellion  against  the  United  States,  and  exposed  them,  at  the  worst,  to 
the  municipal  penalties  of  the  foreign-enlistment  act,  or  the  late  of 
l>risoners  of  war. 

So,  too,  all  commercial  contracts,  including  the  raising  of  money  by 
loan,  the  building  or  tittiug  of  vessels,  the  .sale  of  arms  or 

munitions  or  other  supplies  in  aid  of  insurrection  or  domes nm.r'.Vi  >Tn". 

tic  rebellion  in  a  foreign  state,  are  absolutely  condemned  as 
immoral  in  the  law  of  England,  and  are  jiroscribed  by  the  courts  of 
justice.     {'.')  riiill.  Int.  Law,  §  LII  ;  Forsyth  Cons.  Law,  ]»p.  L'.'id-T.)     The 
effect  of  tlie  (Queen's  proclamation  was  to  relieve  all  such  <;ontracts  in 
aid  of  the  resources  of  the  rebellion  from  this  pioscription  for  immo 
rality,  which,  otherwise,  the  law  of  lOngland  a|)pli<'(l  to  them. 

V.  This  public  act  of  the  government  of  (ireat  lUitain,  of  such  [)ro- 
found  import  in  its  bearing  upon  tlie  contlict  which  the 
United  States  were  addressing  tiiemselves  to,  ojiened  to  the 
minds  of  the  Uritish  i)eoi)le  entirely  new  relations,  moral, 
political,  and  legal,  with  the  ])eiiding  hostiliti«'s,  and  was  Ibllowed  by  an 
active,  constant,  and  systematic  contribution  IVom  tln'ir  inexhaustible 
linancial  and  commercial  resources,  in  supply  of  the  deliciencies  of  the 
rebels,  and  in  reduction  of  the  disparity  of  streng  h  between  them  and 
their  Clovernment.  The  methods  and  the  results,  in  their  iiatiiie  and 
magnitude,  of  this  participation  of  the  people  of  (ireat  Uritain  in  the 


II  iv.sliilliiwi-il  liv 

l-VrlltllH(  ir  Mllllnltll- 
llKII-*      Ml    illil     Ut"     ttlh- 

I1IHUIK'-Ilt>. 


'      "■ 


■^^ 


12 


ARGJ'MKNT    OF    THK    rNITEl)    STATES. 


tlomo.stit'  contlict  \vlii(;h  rn^ed  in  the  IJniti'd  Stat«'S,  are  inesented  to 
the  notice  «)f  the  trihinial  in  the  Case  of  the  United  States,  are  attempted 
to  be  qualitied  or  jnstitied  in  the  Case  aiMl  Connter  Case  of  Iler  IJritannii* 
Majesty,  and  are  disphiyed  in  the  vohinies  of  evidence  submitted  in 
support  of  the  opposite  contentions  of  the  parties  !)efore  the  arbitrators. 
They  were  the  sul>Jects  of  contemporaneous  correspondence  between  the 
two  govern niejits,  in  detail,  at  every  sU\<^v  of  their  occurrence,  and, 
since  tlie  suppression  of  the  rebellion,  the  adverse  views  of  the  govern- 
nients  concernin<;"  them,  by  the  fortunate  lesult  of  a  lon<>,  a  ilillicult, 
and  an  hoiU)rablc  and  amicable  course  of  nei^otiation,  have  been  put  in 
the  way  to  a  final  settlement  by  the  Judi^iutMit  and  award  of  this  tribu- 
nal. It  only  remains  for  us,  under  this  division  of  the  ar.uinnent,  to 
diree.  the  attention  of  the  arbitrators  to  the  situation  in  which  the  }?ov- 
eriiinents  of  Clreat  JJritain  an«l  the  United  States  stood  toward  each 
other,  and  to  the  subjects  of  ditl'erence  between  them,  at  the  close  of  the 
domestic  hostilities  in  connection  with  which  they  liad  arisen,  and  to 
the  disposition  of  those  «Iitlerences  souj^ht  to  be  accomplished  by  the 
treaty  of  Washington  and  the  fri<'ndly  deliberations  of  the  arbitrators. 

VI.  The  United  States,  uotwithstaiiding  the  ineompetency  of  the  re- 
sources of  the  rebellion  in  these  regards,  and  the  adequate 
<.,i!w.^i"'Vr."''„'  iM>wer  ami  success  (►t  the  (iovernment  in  suppressing  any 
such  ettbits,  suffered  during  the  contlict,  in  a  very  gi'cat  «le- 
gree,  the  injuries  which  can  oidy  be  iuHicted  by  hostile  connnerec!  and 
niaritinu'  warfare.  \u  the  three  forms  which  make  up  the  struggles  of 
liiaritime  war,  foreign  trade  in  contraband,  violation  of  blockade,  and 
])ri/.e  capture,  the  United  States  were  seriously  vexed  throughout  their 
<'oiiiliet.  although  they  were  engaged  with  an  adversary  whi(^h  had  no 
cninmerce.  could  build,  eipiij),  arm,  or  man  no  ships,  kei)t  c;ien  rio  ports, 
CDiild  furnish  no  convoy,  olfer  or  meet  no  naval  battle.  l»ring  no  prize 
i)[t';(i  prti.si'lid  or  undei-  Judicial  condemnatictn.  J>y  these  maritime  hos- 
tilities, their  immense  inival  force  was  kept  constantly  ocnipied  for  four 
years,  and  Their  commercial  marine  was  ]»luiulered,  burnt,  and  driven 
from  the  seas.  Their  carrying  trade  in  the  commerce  of  othei'  nations 
was  swept  away  from  them,  ami,  in  their  own  commerce,  placed  at  a 
disadvantage  in  lates  of  insurance  and  tVeiglit.  in  a  word,  without  a 
maritinu'  enemy  or  a  naval  war.  the  United  States  sullV'red  the  stress, 
tlie  injuries,  and  the  losses  which  only  imval  belligerency  could  inflict. 

\'li.  Jn  looking  fur  the  agencMes  and  opeiations  which  had  wrought 
\v!,„i,  r.-.uii-.i  these  disasters,  the  i)ubli(;  history  of  the  hostilities,  and  luit 
?"'"  Z'.,rm"r ';  li'^!^  the  detinite  and  comprehensive  proofs  laid  before  this 
"""■'''""■•'"'•■"  tiibnnal,  exhibit  them  as  worked  out  by  seluMues  and  en- 
ti'rprisesof  IJritish  (uigin,  maintained  by  Ibitish  resources,  and  ]>lace<l 
at  t!ie  service  of  the  rebellion,  under  whate\ cr  nn)tive  of  cupidity,  of 
sympathy  with  that  cause,  or  of  enmity  to  the  United  States.  Systems 
of  British  contraband  trade,  and  organized  merchant  fleets  for  the 
breach  of  the  blockade  «'stab!ished  by  the  United  States;  the  Uritish  pos- 
sessions. neighl)oring  to  the  theater  of  the  donu'.Ntic  war,  madt'  depots  of 
hostile  trade  and  eoveis  for  mival  war — 


'•  ;ic('i)iiini<nl;i   tVaudi 
Ann(tninii|iio  dolis :" 

ships  of  war,  British  built,  arnu'd  and  supplietl,  swift  ami  vigilant  for  the 
destruction  of  peaceful  commerc*',  swift  and  vigilant  in  elusion  of  armed 
pu  suit — these  were  the  agtuu'iesaml  operations  which  the  rebel  hostili- 
ties wrought  into  the  service  of  their  maritime  war,  aiul  these  the  an- 


C0NTROVf:K8y    sriiMlTTKl)    TO    AKIUTKATIOX. 


13 


tllOUt  i» 

stress, 
inflict, 
ronght 
iiul  not 
oiT  this 
and  en- 
placed 
dity,  of 
iystenis 
or  the 
ish  i>os- 
'pots  ol' 


for  the 
ariiietl 
hoatili- 
the  an- 


N:niin'  of  tlu" 
iiini'silidict'-aou 
llilli'il  St, It. -I. 


thors  of  the  wide-reacliin<;'  disasters  which  the  nuiritinic  propert^y  of  the 
United  States  \vas  subjected  to. 

Vlir.  A  further  examination  shows,  npon  definite  and  une^piivocal 
evidence,  that  these  powerful  and  ett'ective  contributions  of 
Jiritish  aid  to  the  pressing  occasions  of  the  rebel  war,  did  ./;:.i!%''-.'u-3Kvi'i!  ^ 
not  si)rinf>' from  the  spontaneous  and  casual,  <lisconnected, 
and  Uuctuating  motives  or  impulses  of  nu'rcantile  adventure  or  cupidity, 
nor  were  their  immense  and  i)rolonged  operations  snstained  ami  carried 
forward  by  any  such  vague  and  irresponsible  agencies.  They  were  in- 
duced, stimulate*',  and  directed  by  oHicial  and  authentic  elforts,  in  the 
name  and  by  the  authority  of  the  rebel  adujinistration,  rei»resented  by 
established  ageiu-ies  and  permanent  agents  within  the  territory  of  (^Ireat 
lUitain,  It  was  an  occu[»ation  of  that  territory,  and  an  application  of 
the  manifold  means  which  the  boundless  resources  of  its  people  supplied, 
by  agents  of  the  dilTerent  dei)artments  of  the  rebel  administration,  there 
to  comluct  the  preparations  of  its  hostilities  against  the  United  States 
for  which  its  original  internal  resources  did  not  furnish  the  means,  and 
which  the  belligerent  {K)wer  of  the  United  States  couhl  jtreNcnt  from 
l)eing  intro(biced  or  carried  on  within  it.  It  was  this  system  which  is 
justly  described,  in  the  Case  of  the  United  States,  and  exhibitinl  in  the 
])roofs,  asecpiivalent,  within  the  sphere  of  its  operations,  to  using  Great 
JUitain  as  "  the  arsenal,  the  navy-yard,  and  the  treasury  of  the  insur- 
gent confederates.'' 

JX.  If  the  actual  method  and  agencies  of  these  disasters  were  thus 
manifest,  the  magnitude  and  permanence  of  the  injuries 
sulfered  from  them  by  the  United  States  are,  also,  indispu- 
table. These  injuries  were  specific,  in  the  sha[>e  of  private 
liKsses  and  public  expenditures,  capable  of  somewhat  accurate  ascertain- 
juent  and  computation.  They  were  also  f/encral,  (1,)  in  the  burdens 
upon  the  commerce  of  the  United  States  produced  by  this  naval  warfare, 
and  of  which  the  enhanced  premiums  of  insurance  furnish  sonui  measure, 
and  (1*,)  in  the  retluction  of  the  meniantile  marine  of  the  United  States, 
and  the  tausfer  of  its  tratle  to  the  liritisli  liag,  which  the  public  rec(U'ds 
of  its  tonnage  will  disclose.  Besides  injuries  in  these  forms,  the  influ- 
ence of  these  maritime  hostilities  upon  the  conduct,  severity,  length,  and 
burdens  of  the  war  forced  upon  the  Government  of  the  United  States, 
in  maintenance  of  its  authority  and  in  suppression  of  tl"^  rebellion,  con- 
stitute another  head  of  injuries  suffered  by  the  United  States  from  the 
prosecution  of  these  maritime  hostilities.  In  the  aggregate,  then,  these 
injuries  nuike  up  the  body  of  the  grievance  w  hich  the  United  States  have 
suflered  from  the  incorimration  into  the  rebel  strength  and  war  of  the 
aforesaid  agencies  and  operations,  contiibuted  thereto  from  the  in- 
terests, the  sympathies,  and  the  resources  of  the  people  of  Great 
J  hi  tain. 

X.  Upon  a  survey  of  the  whole  fiehl  of  the  international  relations 
which  had  been  maintained  toward  it  by  other  friendly 
])owers  during  the  severe  trials  through  which  it  had  passed,  .i-tn.tm.lt'i  ',"""!' 
the  Governmentof  the  United  States  found  no  occasion  to  oc- 
cupy itself  with  any  grievance  or  to  lauu>nt  any  disasters  which  it  had 
suffered  from  foreign  aid  to  the  strength  and  persistence  of  the  rebel- 
lion from  any  other  source  than  from  the  action  and  agency  of  the 
piople  of  Great  Britain.  If  other  great  powers  had  followed,  at  greater 
or  less  intervals,  the  precedent  of  the  governmental  act  of  (Jreat 
Britain  in  its  proclamation,  and  issued  fornuil  declarations  in  the  same 
sense,  these  governments  had,  essentially,  kept  the  action  of  their  sub- 
jects within  the  obligations  of  abstinence  from  the  contest  in  obedience 


14 


AROl'MKNT    OK    THK    IMTKl)    STATKS. 


to  tlio  ro(|uiroiiu'iits  of  tlic  law  of  iiiitions.  Tlic  lliiitod  StatcM,  there- 
foiT,  had  110  duty  to  tlitMusclvos  tiiid  their  (iitizcus,  and  noiii',  to  their 
position  ainoiift'  tho  nations  of  tho  \voild,and  in  niaintenancc  of  Justice 
ami  friendship  in  the  I'uture,  which  called  ii]»on  them  to  assert  any  rijjjlits 
or  redress  any  \vron<»s  ^•ro\vin.i>'  out  of  tlie  conduct  toward  them  of  any 
other  j)ower  than  (Jreat  Jiritain. 

XI.  The  course  of  the  i)ul>lic  corresi)ondenc''  nween  the  j>()vern- 
inent«  of  Oreat  Jiritain  and  the  United  States,  whether  coii- 
MMt'..!  Ii,,'"':m'i,,7m.  temporaneous  with  or  subsequent  to  the  events  to  which  it 
related, dis(;losed  so  wi<le  a  dilference  in  the  estimates  whi(;h 
the  two  .yoverninents  placed  upon  the  rij»hts  and  duties  of  satisfaction 
and  indemnity  for  the  injuries  the  United  States  had  sull'ered,  and  for 
which  they  were  deinandin<>'  redress  from  (Jreat  ISritain,  as  to  jnoduce  a 
situation  of  the  jireatest  gravity  and  dillicnlty.  Althouffh  it  may  be  con- 
fidently lioi)ed  that  the  more  i^eneral  acceptance  of  the  obli<iations  of 
justice  between  nations  has  m.ide  it  more  and  morediflicult  for  two  such 
<»overnments  to  lind  themselves  in  the  necessity  of  appealinp;  to  the 
resorl  by  which,  as  Vattel  exi>resses  it,  "a  nation  ])rosecutes  its  right 
by  force,''  yet  nnapiicast'd  complaints  of  tho  maf;nitude  and  severity  of 
those  preferred  by  the  United  States  a,i>ainst  Great  Jbitain  do  not  easily 
pass  into  oblivion  witiiout  some  form  of  adjudication.  Whether  or  not 
the  resources  of  international  Justice  shall  ever  furnish  to  nations  a 
compulsory  tribunal  of  reason  that  will  supersede  what  Lord  Bacon 
calls  '-the  hij^hest  trials  of  ri,i;ht,  when  i)rinces  and  states  that  acknowl- 
edfjfe  no  superior  upon  earth  shall  put  themsehes  ui)oii  the  Justice  of 
(lod  for  the  decidinjij;  of  their  controversies  by  such  suc(?ess  as  it  shall 
please  llim  to  fjive  on  either  side,"  it  lias  ])roved  to  be  within  the  com- 
pass of  the  public  reason  and  Justice  of  tin;  two  i>owerful,  enli<;htened, 
and  kindred  nations,  ])arties  to  this  great  controversy,  to  subtract  it 
from  the  adjudication  of  "war,  the  terrible  litis'ation  of  states."  ]>y 
amicable  negotiations  which  have  i)rodu(;ed  the  treaty  of  AVashington, 
the  high  contracting  parties  have  reduced  their  dilfereiujes  to  a  formal 
and  detinite  expression  and  description  of  the  claims  for  satisfaction  and 
indemnity  by  (ireat  Britain  wliieh  the  United  Staves  insist  ui)on,  and 
that  nation  contests,  and  have  submitted  to  the  award  of  Ihi;  august 
tribunal  the  linal  determination  of  the  same. 

The  Case  of  the  Uniteil  States  sets  forth  the  text  of  tliosi^  articles  ol 
Tiw  prov,-„„H  .1  tl'c  tieaty  of  Washington  which  provide  for  tin*  constitu- 
M''«tm?resV.'ItiM^^^^^^^^^^^  tion  of  the  tribunal  of  arbitration,  and  aseert'iin  and  state 
M,i.itrai.on.  iim  subject-matter  for  its  Jurisdietioii,  the  measure  of  its 

powers,  and  the  form  and  effect  of  its  authorized  award.  In  the  full 
light  of  the  negotiations  which  led  to  and  attended  this  consummation, 
and  which  are  laid  before  the  tribunal,  in  the  Cases  and  iiroofs  of  the 
<M)iiteiiding  parties,  the  arbitrators  will  iiiid  no  difliculty  in  allixing  to 
the  terms  of  the  treaty  their  true  and  certain  meaning. 

We  desire,  by  a  few  observations,  to   attract   the   attention  of  tho 
arbitrators  to  some  principal  features  of  these  provisions  of  the  treaty. 

1.  The  situation  giving  occasion  to  and  intended  to  be  met  by  these 
i)..,r,pi  .MttiM  provisions  of  the  treaty  is  described  as  "  differences  that 
'""'  liave  arisen  between  the  (Joveriiment  of  the  United  States 

and  the  government  of  Her  Britannic  Majesty,  and  still  exist,  growing 
out  of  the  acts  committed  bj'  the  several  vessels  which  have  given  rise 
to  the  claims  geiierically  known  as  the  'Alabama  claims.'  "  The  only 
other  recital  bearing  upon  this  subject,  before  the  operative  provisions 
of  the  treaty  for  the  disposition  of  these  ditt'erences,  is  to  the  e'Vect  that 
"Her  Britannic;  !\[ajesty  has  authorized  her  high  commissioners  and 


I'M,  tluU'O- 

',  ro  their 
[)t'  justice 
LH.V  lij-hts 
'in  of  any 

^  j>t)vei"ii- 
I'tluTcon- 
>  which  it 
tos  which 
tisfiurtion 
1,  and  for 
|)ro«luce  a 
!jy  be  coii- 

•  iitions  of 

•  two  such 
if>"  to  the 

its  right 

everity  of 

not  easily 

or  or  not 

nations  a 

rd  Jiacon 

t  aeknowl- 

Jnstice  of 

s  it  shall 

L  the  coni- 

|ij;litene(l, 

ibtract  it 

tes."    By 

shinston, 

a  formal 

tioii  and 

)on,  and 

^  august 

rticles  ot 
constitu- 
md  state 
ue  of  its 
n  the  full 
iniuatiou, 
ts  of  the 
Tllixin}>'  to 

^\i  of  the 
treaty. 
I  by  these 
[ces  that 
\d  States 
jjrowing 

en  rise 

?he  only 

["ovisions 

pect  that 

liers  aud 


CONTIJOVKKSV    SIHMITTKI)    TO    ARP.ITIJATIOX. 


15 


Th"    nil.M    Ml'    tl,i 
lrr;il.v. 


'I'll.'     p)n\i-ii)||-     i.(" 

Am.  I.-  VII. 


plenipotentiaries  to  express  in  a  friendly  spirit  the  reiiret  lelt  by  Ifer 
^lajesty's  jnoveiinnent  for  the  eseapi',  uiidci'  whatever  eircunistauiies,  of 
the  Alaltania  and  otiier  vessels  fr(>»>'  I.ritish  ports,  and  for  the  depreda- 
tions coniniitted  by  these  xcssels." 

Ulton  these  premises  thus  recited,  and  ''  in  orde*  to  icMuove  and  adjust 
ail  comi)Iaints  and  claims  on  tiie  i)art  of  the  United  States,  and  to  i)ro- 
vide  tor  the  speedy  settlement  of  such  (daims,"  the  ()i)erative  arranjje- 
ment  to  that  end  jtroeeeds  in  the  <lelinite  statement  that  "the  high 
contracting  ])arties  agree  that  all  the  said  claims  growing  out  of  a(^ts 
committed  by  the  aforesaid  vessels  and  generically  known  as  the  'Ala- 
bama claims,'  shall  l)e  referred  to  a  triltuual  of  arbitration,"  which  this 
article  of  the  treaty  then  ])roceeds  to  constitute. 

II.  The  sixth  article  of  the  treaty  imi)oses  certain  rules  or  jnin- 
(;iples,  as  the  law,  accei)ted  by  the  concurrence  of  the 
high  contracting  ])arties,  accor«ling  to  which  the  actual 
nnitters  in  difference  betwi'cn  them  are  to  be  adjudicated  by  the  tribu- 
nal;  and,  ac(;ordiiigly,  it  is  ])rovidcd  that,  "in  deciding  the  matters 
submitted  to  tht^  arbitrators,  they  shall  be  goveiiuMl  by  the  following 
three  rules,  whiidi  are  agreed  up<»n  by  the  high  contracting  i>arties  as 
rules  to  ln^  taken  as  applicable  to  the  case,  and  l)y  such  jjrinciples  of 
international  law,  not  inconsistent  therewith,  as  tlie  arbitrators  shall 
determine  to  have  been  ai)plicable  to  the  case."  The  article  tiien  pro- 
ceeds to  give  the  text  of  the  rules,  which  it  is  not  n*  'ssary  here  to 
re])eat. 

The  only  further  instruction  in  regard  to  the  disposition  of  the  mat- 
ters submitted  to  arbitration,  uiuler  the  lules  prescribed  for 
their  determination,  is  to  be  found  in  the  seventh  article  of 
the  treaty,  in  ils  i)r<)vision  that  '•  the  said  tribunal  shall  ilrst  <letermine 
as  to  each  vessel  separately  whether  (Ireat  IJiitain  has,  by  any  act  or 
omission,  failed  to  fullill  any  of  the  duties  set  foith  in  the  foregoing 
three  rules,  or  recogni/eil  by  the  principles  of  interimtional  law  not  in- 
consistent with  such  rules,  and  shall  certify  such  fact  as  to  each  of  the 
said  vessels." 

Upon  this  i)iiiieipal  determination  by  the  tribuiml,  it  is  also  ])rovided, 
in  Article  VII,  that,  "in  case  the  tribunal  find  that  Great  Britain  has 
failed  to  fulfill  any  tluty  or  duties  as  aforesaid,  it  may,  if  it  think  proi)er, 
])roceed  to  award  a  sum  in  gross  to  be  ])aid  by  (ireat  JJritain  to  the 
United  States  for  all  the  <'laims  referred  to  it,"  and,  in  the  tenth  article, 
that,  "  in  ease  the  tribunal  limls  that  (Ireat  liritain  has  failed  to  fulfill 
any  duty  or  duties  as  aforesaid,  and  does  not  award  a  sum  in  gross,  the 
high  contracting  ])arties  agree  that  a  board  of  assessoi's  shall  be  ap- 
l)ointed  to  ascertain  and  determine  what  claims  are  valid,  and  what 
amount  or  anuiunts  shall  be  ]taid  by  (Ireat  Ibitain  to  the  United  States 
on  account  of  the  liability  arising  from  such  failure  as  to  ea(di  vessel, 
according  to  the  extent  of  such  liability  as  decided  by  the  arbitrators." 

The  effect  of  the  award  that  shall  be  nnule  by  the  arbitrators  under 
the  authority  conferred  ujjou  them  by  the  treaty,  is  given 
by  the  nintli  article,  which  jnovides  that  "  the  high  con- 
tracting parties  engage  to  consider  the  lesult  of  the  ])roceedijigs of  the 
tribunal  of  arbitration  and  of  the  board  of  assessors,  should  such  board 
be  ai>;">inted,  as  a  full,  ]U'rfect,  and  final  settlement  of  all  the  claims 
herein nefore  referred  to;  ami  further  engage  that  every  such  claim, 
whether  the  same  nuiy  or  may  iH)t  have  been  presenttd  to  the  notice  of, 
made,  preferred,  or  laid  before  the  tribunal  or  board,  shall,  from  and 
after  the  conclusion  of  the  proceedings  of  the  tribunal  or  board,  be  con- 


KiV''it  111'  M\  a\Miid. 


16 


AitGI'MKNT    OF    TlIK    I'MTKl)    STATKS. 


T^ 


riif  rii(ti»<urf  n|  i 
•■iiMiity  cl;iiiii<-<l. 


.sidorod  and  tieatrd  us  tiiiallv  settled,  barred,  and  liencefoitli  inadmissi- 
ble;' 

From  these  arran<;'ements  of  the  treaty,  it  i:i  apparent : 
(1.)  'J'hat  the  high  (•ontractinf4partieshave  t(»iiad,(in  theimblieactol'the 
government  of  (Ireat  Jiritain,  exitressing  tiie  regret  of  that 
government  for  eertain  occnrrences  in  the  past,  and  in  the 
ioint  pnblic  actof  the  two  governments,  by  which  they  agree  to  observe, 
"as  between  themselves  in  fntni'e,''  the  rnles  establisln'd  as  tlie  law 
«)f  this  arbitration,  "and  to  bring  tluMO  to  the  knowledge  of  other 
nniritime  powers,  and  to  invite  them  to  accede  totluMn,'*)  the  means  of  re- 
dneing  the  ineasnre  of  the  (tomplaint  and  demand  for  indemnity,  insisted 
upon  by  the  United  States,  and(!onteste<lby  (Jreat  IJiitain,  before  this  tri- 
bunal, to  all  the  chums  of  the  l/'nited  States  "growing  out  of  acts  <toin- 
niitted  by"  the  described  "vessels  and  generically  known  as  tin'  'Ala- 
bama claims.'" 

(2.)  That  these  claims  are  all  i)referred  by  the  United  States  as  a  na- 

ii,H  ,.|„i„,.  „„-  tion  against  Great  Jiritain  as  a  nation,  and  are  to  be  so  com- 

.•r,.d»,e..aiio,mi.    ])i^t^.,[  jimj  puld,  wliethcr  awarded  as  "a  sum  in    gross," 

under  the  seventh  article  of  the  treaty,  or  awardetl  for  assessment  of 
amounts,  under  the  tenth  article. 

(o.)  That  the  authority  of  the  tribunal  is  absolute  and  final  between 

Th,.  n.ithoniy  oi  tlie  two  uatlous,  and  comprehensive  of  all  the  claims  falling 

.?.rtt'T;lHt"m^^^^^^^^^^  "within  the  terms  of  the  submission,  "  whether  the  same  may 

""•  or  may  not  have  been  presented  to  the  notice  of,  unule,  pre- 

ierred,  or  laid  before  the  tribunal  or  board  of  assessors." 

(4.)  That  by  force  of  this  treaty,  ami  the  execution  of  the  jurisdic- 
tion it  confers  upon  this  tribunal  of  arbitration,  the  contro- 
versy between  the  two  nations,  arising  upon  the  comluct  of 
(Jreat  Britain  during  the  late  rebellion  in  the  United  States,  will  ilnd 
its  final  solution  in  the  award  of  the  arbitrators,  and  will  be  forever 
remove<l  as  an  oc(;asion  of  estrangement  or  disturbane<'  of  })eace. 


li.il. 


-;■* 
M 


Imissi- 


tol'tlu' 
>f  that 

ill  the 
hserve, 
lie  law 
f  othi'f 
isot'  vv- 
iisistA'd 
thistii- 
ts  com- 
ic 'Ala- 
is  a  na- 
s<>  coni- 

<;ross," 
inent  of 

between 
s  tailing 
line  may 
ule,  pre- 

jniisdic- 
>  contro- 
lulnct  of 
will  lind 
forever 

<;e. 


III.-GEXERAL  DISCUSSION  OF  QUKSTIOXS  OF  LAW. 


Ill"  liihir.'  of 
(iri'itt.  itnt;uit  t'> 
uiatiitaiti   iie-ilriilitV' 


We  arrive,  now,  in  secinence  of  the  forejioiiiiL!:  exposition  of  the  origin, 
history,  and  natnre  of  the  pending  controversy  between  the  United 
States  and  Great  ]jritain,to  statement  of  the  reclamations  of  the  Amer- 
ican (lovernment  against  the  British,  comprised  in  the  Treaty  of  Wash- 
ington, and  explanation  of  the  gronnds  of  jMiblic  law  on  which  those 
reclamations  are  founded,  and  in  view  of  which  the  United  States  aslc 
the  judgment  of  this  High  Tribunal. 

The  principle  of  these  reclamations  is  fully  set  forth  in  the  Case  and 
( "oiinter  Case  submitted  by  the  United  States. 

But  a  summary  restatement  thereof  is  necessary  here  in  order  to  give 
completeness  to  the  present  Argument,  so  that  it  shall  constitute  a  con- 
nected and  logical  resume  of  the  whole  controversy  between  the  two 
Governments. 

I.  The  United  States  maintain,  as  matter  of  fact,  that  the  British 
Government  was  guilty  of  want  of  due  diligence,  that  is,  of 
culpable  negligence,  in  permitting,  or  in  not  preventing,  the  i .. 't"'!  "11;;.;^',','' ' 
construction,  equipment,  manning,  or  arming,  of  confederate 
men-of-war  or  cruisers,  in  the  ports  of  Great  Britain  or  of 
the  British  colonies;  that  such  acts  of  commission  or  omission,  on  the 
jiart  of  the  British  Government,  constituted  violation  of  the  interna- 
tional obligations  of  Great  Britain  toward  the  United  States,  whether 
she  be  regarded  in  the  light  of  the  treaty  friend  of  the  United  States, 
while  the  latter  were  engaged  in  the  suppression  of  domestic  rebellion, 
or  whether  in  the  light  of  a  neutral  in  relation  to  two  belligerents ;  that 
such  absence  of  due  diligence  on  the  part  of  the  British  Government 
led  to  acts  of  commission  or  omission,  injurious  to  the  United  States,  on 
the  part  of  subordinates,  as  well  as  of  the  ministers  themselves ;  and 
tliat  thus  and  therefore  Great  Britain  became  responsible  to  the  United 
States  for  injuries  done  to  them  by  the  operation  of  such  cruisers  of  the 
Confederates.  That  is  to  say,  to  adopt  in  substance  the  language  of  the 
treaty  of  Washington,  the  United  States  maintain  as  fact — 

First,  that  the  British  Government  did  not  use  due  diligence  to  pre- 
vent the  fitting  out, arming,  or  equipping  within  its  jurisdiction  of  every 
vessel  which  it  had  reasonable  ground  to  believe  was  intended  to 
cruise  or  carry  on  war  against  the  United  States,  and  also  did  not  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction  of  every 
vessel  intended  to  cruise  or  carry  on  war  as  above,  such  vessel  having 
l»een  specially  adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to 
warlike  use. 

Secondly,  that  the  British  Government  did  permit  or  suffer  the  Con- 
federates to  make  use  of  its  ports  or  waters  as  the  base  of  naval  opera- 
tions against  the  United  States,  or  for  the  renewal  or  augmentation  of 
military  supi)lies  or  arms,  or  the  recruitment  of  men,  for  the  purpose  of 
w^ar  against  the  United  States. 

Thirdly,  that  the  British  Government  did  not  exercise  due  diligence 
in  its  own  ports  and  waters,  and,  as  to  all  i)ersons  within  its  jurisdic- 
tion, to  prevent  any  violation  of  its  aforesaid  obligations  and  duties  as 
respects  the  United  States. 
2  c 


18 


ARGUMKNT    OF    THK    rNITKl.)    STATES. 


II.  The  United  States  furtlier  niaintiiin  that,  it  appeariii};  ais  fact 

that  Great  Britain  did  fail  to  fulfill  all  her  duties  as  afore- 
.Mitr,r'7r'.'m''M,''h  said  toward  the  United  States,  (Article  VII,)  thereupon  and 

thereby,  in  virtue  of  the  Treaty  of  Washington,  and  of  the 
express  compacts  therein  contained,  (rreat  Hritain  is  bound  by  reason 
of  her  liability  arising  from  such  failure  (Article  X)  to  pay  to  the  United 
States  a  sum, in  gross  or  on  assessment, for  all  the  reclamations  leferred 
*o  this  Tribunal,  or  such  amount  or  amounts  on  account  of  said  liability 
according  to  the  extent  thereof  as  decided  by  the  Tribunal. 

III.  The  United  States  lind,  on  inspection  of  the  Treaty  of  Washing- 
s,«,e  of  th.  M,h.  ton,  that  (ireat  Britain  has  submitted  to  this  Tribunal  "all 

im-^ioii.  ^^Q  gj^jji  claims  "of  the  United  States  "growing  out  of  tJie 

acts  "of  the  confederate  cruisers  aforesaid,  (Article  I,)  without  limita- 
tion, qualification,  or  restriction;  and  that, in  pursuance  of  such  general 
submission,  this  Tribunal  is  to  examine  and  decide,  by  the  express  com- 
pact of  the  treaty,  "all  (piestions"  which  shall  be  laid  before  it  on  the 
part  of  the  Government  of  the  United  States,  as  well  as  that  of  Great 
Britain.    (Article  II.) 

IV.  The  United  States  further  find  as  fact  on  inspection  of  the  nego- 

tiations which  preceded  the  treaty  of  Washington,  that  the 
„J^^"-''m'^'\^Z  Secretary  of  State  of  ie  United  States  declared  that  the 
!I',Z'Mhe'.'n.'«r'.'.'"  Amcrlcau  Government,  in  rejecting  a  previous  convention, 

"  abandons  neither  its  own  claims,  nor  those  of  its  citi- 
zens ;'"  that  the  claims  thus  referred  to  were  specifically  set  forth  in  a 
subsequent  dispatch  of  the  same  minister,  as  follows : 

The  President  is  not  yet  prepared  to  pronounce  on  the  (juestion  of  the  indcninities 
which  he  thinks  due  by  (Ireat  Hritain  to  individual  citizens  of  the  United  States  for 
the  destruction  of  their  property  by  rebel  cruisers  fitted  out  in  the  ports  of  Great 
Britain. 

Nor  is  he  now  prepared  to  speak  of  the  reparation  which  be  thinks  due  by  the  British 
(Jovernnient  for  the  larger  account  of  the  vast  nationnl  injuries  it  has  inllicted  on  the 
United  States. 

Nor  does  he  attempt  now  to  nieasme  tlie  relative  etit'ct  of  the  various  causes  of  in- 
Jury,  Avhether  by  untimely  recoffnition  of  belliffcrency,  by  sutt'eriufj  the  littin^'  out  of 
rebel  cruisers,  or  by  the  supply  of  ships,  arms,  aiul  munitions  of  w.ir  to  the  Confederates, 
or  otherwise,  in  whatever  nuinner.-' 

V.  The  United  States  farther  find  as  fsict  that  the  President,  in  his 
annual  message  to  Congress  immediately  i)recediug  the  conclusion  of  the 
Treaty  of  Washington,  and  which  indeed  constituted  the  inducement 
thereto,  spoke  as  follows : 

I  regret  to  say  that  no  conclusion  has  been  reached  ft>r  the  adjustment  of  the  claims 
.against  Great  Britain,  growing  out  of  the  courses  adopted  by  that  Government  during 
the  rebellion.  Thecabinet  of  Loudon,  so  far  as  its  views  have  been  expressed,  does  not 
appear  to  be  willing  to  concede  that  Her  Majesty'sGovernmentwasguilty  of  any  negli- 
gence, or  did  or  permitted  any  act  during  the  war  by  which  the  United  States  has  Just 
cause  of  complaint.  Our  firm  and  unalterable  convictions  are  directly  the  reverse.  I 
therefore  reconunend  to  Congress  to  authori/.«  the  ai»pointment  of  a  commission  to  take 
])roof  of  the  amounts  and  the  ownership  of  these  several  claims  on  notice  to  the  repre- 
sentative of  Her  Mnjesty  .at  Washington,  and  that  authority  be  given  for  the  settle- 
ment of  tlieae  claims  by  the  United  States,  so  that  the  Government  shall  have  the  own- 
ership of  the  private  claims,  as  well  as  the  responsible  control  of  all  the  demands 
against  Great  Britain.  It  cannot  bo  necessary  to  add  that,  whenever  Her  Mjijesty's 
Government  shall  entertain  a  desire  for  a  full  and  fri<  adly  adjustment  of  these  claims, 
the  United  Stiites  will  enter  upon  their  consideration  with  an  earnest  desire  for  a  con- 
clusion consistent  with  the  honor  and  dignity  of  both  nations.^ 


*  Mr.  Fish  to  Mr.  Motley,  May  15,  1809.  Documents  annexed  to  Case  of  the  United 
States,  vol.  vj,  p.  1. 

■^  Mr.  Fish  to  Mr.  Motley,  September  "25,  18()9,  Documents  as  above,  vol.  vi,  p.  11?.  (Sec 
the  commentary  on  these  nation.al  or  (so  called)  indirect  damages  by  Mr.  Abbott,  in 
Lord  Clarendon's  dispatch,  in  Appendix  to  the  British  Case,  N.  A.,  No.  1,  1870,  p.  19.) 

'  Papers  relating  to  foreign  relations  of  the  United  States,  December  5,  1870,  p.  9. 


GENERAL    DISCUSSION    OK    QIKSTIONS    OF    LAW. 


19 


as  fact 
IS  afore- 
pon  and 
(I  of  the 
y  reason 
c  United 

leferved 

liability 

A'ashinfi- 
unal "  all 
at  of  tlie 
it  limita- 
li  general 
iress  corn- 
it  on  the 
of  Great 

the  nego- 
,  that  the 
.  that  the 
niveution, 
f  its  citi- 
tbrtli  in  a 

iiulenniities 
hI  States  for 
Its  of  Great 

L' the  British 
icted  on  the 

ausesof  in- 
ittiiij?  «»"it  of 
'oiifedoratos, 

■nt,  in  his 
siou  of  the 
iducenient 

,f  the  chiims 
uieiit  duriti}^ 
sed,  (Iocs  not 
ofanj'uesH- 
ates  has  just 

reverse.  I 
ission  to  take 
10  the  repre- 

the  settle- 
ave  the  own- 
;ho  demands 
ler  Majesty's 
these  claims, 
ire  for  a  coii- 


the  United 

i,  p.  i:?.  (See 
r.  Abbott,  in 
870,  p.  19.) 
870,  p.  9. 


irtJitrrifut. 


VI.  We,  the  connsel  of  the  United  States,  insist,  therefore,  that  siieh, 
n  their  magnitude,  nature,  and  scope,  are  the  claims  subuiittod  to  the 
Tribnn.al  by  the  express  tenor,  the  spirit  as  well  as  the  language,  of  the 
treaty  of  Washington,  as  particularly  set  forth  in  tUe'Case  and  Counter 
Case  of  the  United  States. 

To  these  reclamations  the  liritlsh  Government,  in  its  ,i,',';;'"„;,|.;;,',"'  " 
Case  and  Counter  Case,  responds  : 

First,  taking  issue  with  the  United  States  on  the  ([uestion  of  imputed 
negligence,  or  disregard,  in  other  respects,  of  the  rides  of  public  law 
laid  down  in  the  treaty  of  Washington. 

Secondly,  alleging  as  leg.al  theory,  that,  in  the  incidents  brought  under 
review,  the  liritish  Government  acted  in  conformity  with,  and  in  obedi- 
ence to,  the  provisions  of  a  certain  act  of  Parliament,  commonly  known 
as  the  foreign-enlistment  act,  and  that,  by  the  law  of  nations,  or  the 
public  law  of  Great  Britain,  the  obligations  of  the  British  government 
toward  the  United  States  are  to  be  measured  in  e.vcvution  by  that  {ict  of 
Parliament. 

Thirdly,  the  British  Government,  in  justification  or  extenuation  of  its 
own  imputed  delinqueiu'ies  in  the  premises,  adduces  certain  incidental 
considerations,  derived  from  the  history  and  jurisprudence  of  sundry 
foreign  governments,  including  the  Government  of  the  United  States. 

VI.  As  to  the  first  of  these  points,  the  counsel  of  the  United  States 
propose  to  exhibit  to  the  Tribunal  a  complete  and  authentic 
analysis  of  the  great  body  of  pertinent  proofs  contained  in 
the  documents  annexed  by  the  two  governments  to  their  respective 
Case^  and  Counter  Cases;  ami  to  argue  thereon  that  such  documents  con- 
clusively establish  the  main  fact  of  the  violation  by  the  British  Govern- 
ment of  the  rules  of  duty  stipulated  by  the  treaty'  of  \Vashington. 

VII.  As  to  the  second  and  third  of  said  points,  the  counsel  of  the 
United  States  will  in  the  sefpiel  submit  considerations  which,  as  they 
conceive,  conclusively  establish  the  legal  rights  of  the  United  States  in 
the  premises,  notwithstanding  such  defensive  arguments  as  are  adduced 
by  the  British  Government. 

VIII.  Preparatory  to  which,  we  submit  to  the  wisdom  of  the  Tribunal 
the  following  general  considerations  of  law  applicable  to  the 
defense  set  up  by  the  British  Government. 

1.  We  maintain,  and  undertake  to  prove,  that,  even  if  the  provisions 
of  the  foreign-enlistment  act  were  the  measure  and  limit  of  oreatHnt,,, pm 
the  international  duties  of  the  British  Government  in  the  ;>"i  "ii-ihi.„.Bi 
premises,  stUl,  on  the  facts,  there  was  culpable  negligence 
on  the  part  of  Great  Britain.  The  British  Government  did 
not  do,  by  way  of  prevention,  or  repression,  or  punishment,  all  which 
that  act  permitted  and  required. 

2.  But  the  international  duties  of  Great  Britain  are  wholly  independ- 
ent of  her  own  municipal  law,  and  the  provisions  of  the 
above-cited  act  of  Parliament  do  not  rise  to  the  height  of  t  ,''m'i"-pVml;',,t';!i 
the  requirements,  either  of  thelawof  nations  or  of  the  rules 

of  the  Treaty  of  Washington.  That  act  makes  no  adequate  provision, 
either  of  prevention  or  punishment ;  and  it  contains  no  provision  what- 
ever of  executive  prevention,  without  which  no  gcvernment  can  discharge 
its  international  obligations,  or  preserve  its  own  international  peace. 

3.  If,  as  a  question  of  local  administration,  that  act  was  deficient  in 
powers,  it  was  the  international  duty  of  Great  Britain,  as  a 
government,  to  pass  a  new  act  conferring  on  its  ministers 
the  reijuisite  powers. 


Gf-iiiTfil    CO 
atmns  ut   law. 


(((■niH  cvHii  whfii 
mens  in- my  its  lintiiv* 
tiy  thtj  lor«*ign-enli-*l- 
iiient  a<;t. 


DflHcts  ot  Itir^'ipn- 
ii'ii^tni*-iil  aet. 


20 


ARGl'Ml.NT    OF    Till:    IMTKI)    STATK.S. 


i|i.l'.*t  11)11 
ily. 


I.I  lit' 


4.  In  tlic  (loinestic  iiistitiitioiis  of  (heat  Ijiitaiii,  no  (M)nstitiitioiial  ob- 
Thiy  »uM  i.iv    stac'h's  ('.\ist«'<l  to  jnovt'iit  the  onactmcnt  of  siit'h  ik-w  act  of 

*""*""■""'"'  railianu'iit ;  lor,  to  aniini  the  existouoo  of  such  ohstacles 
wouhl  be  to  deny 'to  Great  Kritaiii  the  capacity  and  right  to  subsist  in 
the  family  of  initions  as  a  co-equal  soverei;;n  State. 

In  fact,  flieat  liritain  has  since  tiien,  in  view  of  political  coni|)lica- 
tions  on  the  ciuitinent  of  l"^urope,  enacted  a  new  act  of  I'arlianuMit,  sjich 
as  she  ou^ht  before  to  have  eiuicted,  and  that  on  the  suyjicstion  of  the 
United  tStjites. 

5.  The  Jbitish  Governnieut  throughout  argues  these  «|uestions  as 
questions  of  utuimllty.  We  deny  that  they  are  such  ;  we 
(leny,  as  hereinbefore  stated,  that  (Ireat  JJritain  had  right 
to  inter[M)se  herself  as  a  i>rofessed  neutral   between  her 

treaty  ally,  the  United  States,  and  the  rebels  of  the  United  States.  But 
we  place  ourselves,  at  juesent  and  in  this  lelation,  on  the  i)reinises  of 
the  defensive  argument  of  the  IJritisli  Government.  And,  standing  on 
those  technical  premises,  the  counsel  of  the  United  States  maintain  that 
the  neutrality  of  a  government,  as  respects  two  belligerents,  is  a  ques- 
tion of  international,  not  municipal,  resort.  Its  legal  relations  are  in- 
volved In  the  question  of  the  rights  of  peace  and  war. 

Hence,  to  depend  upon  punitive  municipal  laws  for  the  maintenance 
of  international  neutrality,  is  itself  neglect  of  neutral  duty,  whicli  duty 
deumnds  preventive  interposition  on  the  part  of  the  executive  power  of 
the  State. 

G.  Great  Britain,  therefore,  on  the  narrow  and  inadmissible  premises 
of  her  ow  n  defense,  was  legally  responsible  to  the  United 
siiirnlpoMlihiH  Z  States  for  the  acts  of  the  cruisers  in  question,  whether  as 
tor  non-execution  of  her  then  existing  act  of  Parliament, 
which  was  want  of  due  diligence,  or  for  undertaking  to  dej)end  on  that 
act,  which  not  only  involved  want  of  due  diligence,  l»ut  implied  refusal 
to  perform  the  duties  of  a  neutral. 

IX.  The  counsel  of  the  United  States  will  have  occasion  to  refer  to 
some  of  these  points  in  the  sequel,  when  they  come  to 
present,  in  full  and  athrmatively,  their  own  views  of  the 
international  obligations  of  Great  Britain,  and  of  her  delinquency  in 
the  premises  as  respects  her  special  obligations  toward  the  United 
States. 

Meanwhile,  in  vindication  of  the  suggestions  in  this  behalf  now  made 
by  us,  we  submit  to  the  consideration  of  the  Tribunal  ap])ropriate  ex- 
tracts from  the  great  work  on  "  International  Law,"  by  Sir  Robert  Philli- 
more,  of  whom  it  is  little  to  say  that,  apart  from  his  eminence  as  a  judge 
and  as  a  statesman,  he  is  facile  princeps  among  the  authorities  of  this 
class  in  Great  Britain. 

We  cite  as  follows  : 

Tliorc  roiimiiis  oiu-  iiin'stioii  of  the  j^tu  w.,'  imi)oi'taiicc,  naiiu'ly  the  responsihUity  of  a 
state  for  the  acts  of  Iwv  citi/oiis,  iiivohlii;;  liieduty  of  a  iioutial  to  pievoiit  aiinaineuts 
and  sliips  of  war  isHuinj^  JVoni  her  sliores  for  the  service  of  a  helliyereiit,  thouyh  Hiich 
armaments  were  fiirnislied  and  ships  were  eiiuipped,  built,  and  sent  without  the  knowl- 
edge  and  contrary  to  the  orders  of  her  government. 

The  (piestion  to  wliat  extent  the  state  is  responsible  for  the  private  acts  of  its  sub- 
jects (ciritaxiif  (Id'aitivrit  an  cirexj')  is  one  of  the  most  imiiortant  and  interesting  parts  of 
the  law  which  governs  the  relations  of  independent  states. 

It  is  a  maxim  of  general  law  that,  so  far  as  foreign  states  are  concerned,  the  will  of 
the  subject  uuist  be  considered  as  bound  n\t  in  that  of  his  sovereign. 

It  is  also  a  maxim  that  each  state  has  a  right  to  expect  from  another  the  observauce 
of  international  ol)ligations,  without  regard  to  what  may  be  the  municipal  means  which 
it  i)ossesses  for  enforcing  this  observance. 

The  act  of  an  individual  citizen, or  of  a  small  number  of  citizens,  is  not  to  bo  imjiutcd 
without  clear  proof  to  the  government  of  which  they  are  subjects. 


Sir  It.  I'hiihli 
authority  nlt'ii. 


(iKNKKAL    DISCrSiMON    (tl'    l^UEHTIUNS   oF    I. AW, 


21 


,V  iU!t  of 
l)HtiH'U'S 

ib.sist  iu 

nt,  sucli 
II  of  the 

tiOllH     SIS 

LU'b  ;  we 
rtd  lijibt 
;e(^n  Uer 
tos.  But 
Miiises  of 
lulinp;  on 
tain  that 
s  a  qiu»s- 
is  are  in- 

ntenaiice 

iiich  duty 

power  of 

promises 
le  United 
lietber  as 
ilianient, 
d  on  tbat 

d  refusal 

refer  to 

come  to 

kvs  of  tbe 

juency  in 

IB  United 

low  made 

u'iate  ex- 

[ert  rbilli- 

[s  a  judge 

'S  of  tbis 


hihilUij  of  n 

[iivinaineuts 

lliough  such 

the  know  1- 

,  of  its  aiih- 
liug  parts  of 

the  will  of 

lohscrvaiicc 
leans  which 

be  imputed 


A  K"^'*'''"""'"'  limy  hy  ^»l»l(•^'f^/'  tiiiil  siifr<  ninrt',  n^  \\{'U  us  by  (lir<'''t  inrinhsion,  hi'- 
coine  rfs|M>iisil(lti  lor  tln'  act«t  of  siilijcct-t  whom  it  diii's  not  incvfiit  from  thr  cuiiimi"*- 
sioM  of  ail  injury  to  ii  f(p|ii;;ii  stutr. 

A  j{ovt'riimt'iit  is  pn'siimfil  tu  he  alilc  to  rt'straiii  tlic  suliicct  witliiii  its  tfiritory 
from  coutravi'iiiiig  tho  ohlinalions  ot'  ih'ih  mlity  t"  w  liiili  the  sfal'-  is  hoiiinl.' 

The  govermni'iir  of  thiM)wiici' <>!'  the  raptmcil  piopi-rty  may  iiidri'd  call  tlie  iiciitral 
to  iiccoiiiit  for  itcnnittiiiu;  a  fraudiilcMif,  mnvnrthy,  or  iiiiiiccfssaiy  violation  of  its  Juiis- 
diction,  and  such  iiermissioii  nuiy,  aicurdiiij;  to  thi'  (■ircMiiistaiiccs,  convert  tiie  Ufiitra! 
into  a  helUnereiit.- 

Iii  fact,  tlm  maxim  adverted  to  in  a  former  volume  of  this  work  is  sound,  viz,  that  a 
state  is,  y</-ii(i((, /'(((■/■*,  respdiisihli-  for  whatever  is  done  within  its  Jurisdiction;  foritmiist 
he  itriMiiinnl  to  lie  capable  of  preventing  or  iiunisliin;f  otfi-nses  committed  within  its 
houndaries.  A  body-piditie  is  therefore  responsible  for  tim  acts  of  individuals,  which 
are  acts  of  actual  or  meditated  hostility  toward  a  nation  with  wlii<'h  the  government 
of  these  sulijects  jirofesscs  to  maintain  r<dations  of  frieiidsliip  or  neutrality.  ■ 

The  relation  of  neutrality  will  be  found  to  c(Misist  in  two  princi[tal  circumstances  : 

I.  KntirtMibstinenee  from  any  jiarticipation  in  the  war. 

y.  Impartiality  of  conduct  toward  both  lielligerents. 

This  (ihatiiiriiix  and  this  imparliHlUy  must  be  combined  in  tin.'  character  of  a  hmn'-Jidi: 
nciitral. 

The  iKiitnil  is  Justly  and  ha|>i»ily  designated  by  the  Latin  cxiiression  in  Inllit  mrdiiix. 
It  is  of  the  essiMiei'  of  his  character  that  he  so  retain  this  central  jiosition  as  tf)  incline 
to  neither  btdligertMit.  lie  has  iio/ic* />(7//c»//(  himstdf ;  but  he  is  eiititletl  to  the  con- 
tinuance of  his  ordinary, /'(/s  ptn'is,  with,  as  will  presently  be  seen,  certain  curtailments 
ami  moditlcations,  which  llow  from  the  altered  st.'iti-  of  the  general  relations  of  all 
countiies  in  time  of  war.  He  must  do  nothing  by  which  the  condition  of  either  bel- 
ligerent may  be  bettered  (U'  strcgthened.  //((<>  nilididr  fiat. 

It  ib  for  him  perpetually  to  I'ecollect,  and  pi'actically  to  act  upon,  the  maxim.  "  IIdh- 
tnn  (.S.St!  (jnifac'ittt  <inod  honti  iiltucl.''  ' 

We  do  not  overstate  tbe  jKtiiit  when  we  sny  tiint  these  texts,  tVoiii 
such  an  authority  but  recently  pubHshed,  (1S71,)  and  in  full  view  of 
tlie  present  contioversy  Ijetween  the  two  governments,  compose,  not 
only  a  col)^lplete  answer  to  the  legal  doctrines  of  the  Case  and  Counter 
(!ase  of  (U'eat  IJritain  in  this  behalf,  but  atUrmation  of  the  larger  prem- 
ises of  iugument  tissmiied  by  the  United  States. 

1.  Sir  liobert  riiillimore  avers  that,  so  far  as  Ibreign  States  are  con- 
cerned, the  will  of  the  subject  is  bound  ui)  in  that  of  his  .s(>vereign. 

Now,  among  the  persons  who  eipiipped,  manned,  and  armed  the 
cruisers  of  the  confederates  in  (juestion,  were  ?/<v/('  nuhjcctn  of  (!reat 
liritaln. 

True  it  is  that  the.se  liege  .subjects  of  Oreat  Ibitain  were  hired  toper- 
form  the  acts  in  <|uestion  by  rebels  of  the  United  States,  and  the  Urit- 
ish  CJovernment  strangely  suppo.ses  that,  becan.se  the.se  rebels  were  citi- 
zens of  the  United  States,  therefore  Great  Uritain  was  not  responsible 
for  their  acts.  The  argument  implies  that  foreigners  in  Great  Britain 
arc  independent  of  the  local  jurisdiction.  That,  of  course,  is  an  error, 
liut,  if  it  were  otherwi.se,  the  British  Government  would  remain  respon- 
sible for  the  acts  of  the  Lairds,  and  all  other  British  subjects,  ic.clud- 
ing  rrioleau,  an  American  converted  into  a  British  subject  for  the 
special  object  of  violating  the  laws  of  Great  Britain,  antl  committing 
treason  against  the  United  States  with  im])unity,  under  shelter  of  the 
Hag  of  Great  Britain. 

L'.  Sir  Kobert  Phillimore,  at  a  blow,  strikes  to  the  earth  the  whole 
fabric  of  the  Briti.sh  Ca.se  and  Counter  Case,  iu  declaring  that  no  gov- 
ernment has  a  right  to  set  up  the  deficiency  of  its  own  municipal  law 
as  excu.se  for  the  non-performance  of  international  obligations  toward  a 
foreign  State. 

'  Philliniore's  International  Law,  vol.  j,  preface  to  '2i\  ed,  p.  21. 
''  rhillimore's  luternatioinil  Law,  vol.  iii,  p.  'i2H. 
■'  Phillimore's  International  Law,  vol.  iii,  p.  "218. 
^Phillimore's  Interuatioual  Law,  vol.  iii,  pp.  ".*01-2. 


22 


ARGIMENT    OF    THK    IXITED    STATES. 


H    , 


?  'I 


3.  He  lays  down  the  rule  tbat  a  goveriiinent  may  by  kiioicJcdge  and 
snfferance^  as  well  as  l)y  direct  j>er/«m'<OM,  become  responsible  tor  the 
acts  of  subjects,  (including  commorant  or  transient  aliens,)  whom  it  does 
not  2>revent  from  committing  injury  to  a  foreign  State.  This  proposition 
is  not  presented  by  Sir  liobert  Phillimore  as  based  on  any  express  treaty 
stipulation,  but  as  being  the  doctrine  of  the  law  of  nations.  As  such 
it  serves  to  construe  the  "  due  diligence''  of  the  Treaty  of  Washington. 

4.  In  expounding  the  pioposition  of  the  impartiality  requisite  in  the 
character  of  a  hona-fide  neutral,  he  declares  that  such  neutralitj-  is  vio- 
lated by  any  act  which  betters  or  strengthens  one  of  the  belligerents,  or 
by  any  act  which  gratijics  one  of  the  belligerents. 

It  needs  only  to  consider  the  analysis  of  the  facts  hereinafter  pre- 
sented, to  see  how  much  the  British  Government  did  to  strengthen  and 
to  gratify  the  rebels  of  the  United  States. 

5.  Finally,  he  attirnis  that  if  a  government,  professing  neutrality, 
])ermits  a  fraudulent,  unworthy,  or  unnecessary  violation  of  its  Jurisdic- 
tion, such  ]>ermission  nmy,  according  to  the  circumstanc*  s,  convert  the 
neutral  into  n  belligerent. 

That  is  the  position  of  the  counsel  of  the  I'nited  States  on  this  point ; 
and  it  may  be  shown  by  signal  examples  in  the  previous  history  of  Great 
Britain,  that  she  herself  has  acted  on  this  principle  with  respect  to 
governments  which,  i)rofessing  neutrality,  did  acts  to  strengthen  or 
favor  belligerent  enemies  of  hers. 

X.  We  now  proceetl  to  develop  more  distinctly  the  nature 

and  basis  of  the  legal  theory  of  the  United  States  in  regard 

to  the  questions  at  issue  between  the  two  governments. 

We  commence  by  laying  down  a  series  of  ])ropositious,  which  are,  as 

we  conceive,  axioms  or  postulates  of  the  public  law  of  Europe  and 

America. 

1.  The  right  to  engage  in  war,  and  so  to  become  a  bellig- 
ereut,  is  inherent  in  the  quality  ot  sovereignty.' 
2.  We  assume,  also,  that  the  right  to  maintain  peace  and  to  stand 
neutral  whilst  other  sovereigns  are  belligerent,  is  inherent  in  the  qual 
itv  of  sovereigutv. 

o.  Ah  tbe  riglit  of  war  and  peace  is  inherent  in  sover- 
eignty, so  is  the  right  to  give  cause  of  war  to  another  sov- 


l.-'a:il  lli-.nvoftlie 
Vniti'd  StMti-'  rf- 
!<P»*t'tiiii{  qui-stiotis  at 
i^sue. 


Ritfhtt 
for  war. 


ereign. 


\\h:it. 


Such  cause  of  war  may  consist  in   acts  of  professed  warfare,  as 
the  invasion  of  a  foreign  country  in  arms,  the  reduction  of 
""■  its  cities,  the  military  devastation  of  its  territory,  the  cap- 

ture of  its  merchant-vessels,  or  the  armed  encounter  of  its  ships  of  war. 
5.  Or  such  cause  of  war  may  consist  in  acts  equivalent  to  i)rofessed 
warfare,  as  in  att'ording  aid  to  one  belligerent  against  another,  such 
belligerents  being  each  sovereign ;  or  by  prematurely  conceding  the 
<iuality  of  belligerence  or  of  independence  to  the  rebels  of  another  sov- 
ereign ;  or  by  aiding  such  rebels  in  fact,  whil<»  pretending  friendship 
for  their  sovereign. 
G.  True  neutrality  between  belligerents  consists  in  holding  absolutely 
aloof  from  the  war  in  fact  ami  m  truth,  as  well  as  in  pro- 
fession.    To  profess  neutrality,  and  not  to  observe  it,  is  dis- 


Ni-itr^lily. 


guised  war. 


War  is  by  land  or  sea ;  and  war  by  sea  may  consist  in  combats 
between  ships  of  war,  or  in  the  capture  of  )nerchant;vessels 
and  their  cargoes. 


A\  :ir  .    wh.il 


'  N'uttol.  Droit  rfc*  (linn,  6i\.  Piiuliji-Fotlerc^,  tome  ii,  p.  ;5:57,  ( note.)    Cancliy,  IJroit  mar- 
itime, tome  i,  p.  I-*:  tome  ii,  p,  11.     Miutmis,  Droit  rftt  genu,  t'd.  Vcig(^.  toiim  ii,  p.  IIW. 


GENERAL    DISCUSSIONS    OF   QUESTION    OF   LAW. 


23 


Ige  and 
tor  the 
I  it  does 
>ositiou 
s  treaty 
Is  such 
lington. 
e  in  the 
y  is  vio- 
euts,  or 

ter  pre- 
heu  aud 

utrality, 
jurisdic 
nvert  the 

is  point ; 
of  Great 
spect  to 
rjtheu  or 

le  nature 
u  regard 
ents. 
■k  are,  as 
rope  and 

a  bellig- 

to  stand 
the  «iual 

lu  sover- 
ther  sov- 

irfare,  as 
uction  of 
the  cap- 
)s  of  war. 
)rolessed 

lier,  8uoh 
ling  the 
ther  sov- 
ieudship 

)S()Uitely 
IS  in  pro- 
it,  is  dis- 

combats 
iitjvessels 


Droit  mar 
li,  1>.  VM. 


It  is  not  material  to  this  point  that  certain  of  the  States  of  Europe 
have  agreed  to  abstain  from  the  issue  of  letters  of  mar([ue.  Even  those 
powers  continue  to  maintain  the  belligerent  right  to  captive  private 
merchant-vessels  and  their  cargoes,  by  the  agency  of  men-of-war.  The 
United  States  have  refused  to  enter  into  any  such  agreement,  in  the 
conception  that  it  is  only  adapted  to  governments  which  >:ee  fit  to  incur 
the  expense  of  maintaining  a  large  military  marine.  The  U  i?ited  States 
have  been  content  to  agree  with  other  powers  in  accoiding  immunity 
from  any  capture  to  private  property  on  the  sea :  but  tliey  insist,  as 
they  think  rightfully,  that,  if  private  i)roperty  is  to  remain  subject  to 
capture,  it  should  be  subject  to  capture  by  letter  of  marque  as  well  as 
by  the  regular  naval  forces  of  the  belligerent,  letters  of  marque  having 
the  same  relation  to  regular  forces  in  war  on  the  sea,  as  vohinteer  levies 
have  to  the  regular  forces  in  war  on  land.' 

8.  The  law  of  nations,  as  now  practiced,  i  ermits  the  sale  of  arms  by 

private  merchants  of  the  neutral  sovereign,  and  their  ex-     s.i., ,.c  «,«„ i 

l)ortation  and  transpcu'tation  for  the  use  of  the  l)elHgerent,  '->""^'|"""|»'»'' 
subject  to  cai)ture  as  contraband  of  war,-  although  the  tendency  of 
modern  opinion  is  to  contend  that  such  acts  of  sale  are  contrary'  to  the 
true  principles  of  neutrality. 

Many  of  the  modern  regulations  of  different  governujents  on  the  sub- 
ject of  neutrality,  contained  in  the  doouments  annexed  to  the  American 
Counter  Case,  sustain  this  view.  (See  the  dispatch  of  Lord  Granville  to 
the  Trussian  minister  of  October  21,  ISTO,  on  the  subject,  defending 
the  right  of  such  sales,  j 

But  it  is  admitted  universally,  in  theory  as  well  as  in  i)ractice,  that 
international  law  does  not  permit  the  equipment  of  men-of-war,  or  let- 
ters of  marque,  or  their  rearmament,  or  the  enlistment  of  men  for  the 
military  marine  of  the  belligerent,  in  the  ports  of  the  neutral. 

t).  The  pretended  neutral,  who,  as  a  government,  expedites  vessels, 
or  with  culpable  negligence  permits  the  expedition  of  ves-     p,,,,,,,!, or:.rm..i 

sels  from  his  ports,  to  cruise  against  one  of  the  belligerents,  ■' 

becomes  thereby  belligerent  in  fact,  and  responsible  as  such  to  the 
injured  belligerent. 

10.  In  questions  of  international  peace  or  war,  and  in  all  which  re- 
gards foreign  States,  the  will  of  the  subject  (or  of  connno- 
rant  aliens)  is  merged  in  that  of  the  local  sovereign;  that 
sovereign  is  responsible  if  he  permits  or  knowingly  suffers 
his  subjects  (or  commorant  aliens)  to  perpetrate  injury  to  a  foreign 
State ;  and,  apart  from  other  and  direct  proofs  of  permission,  or  knowl- 
edge and  sufferance,  th''  resi)onsibility  for  any  itijury  is  fixed  on  such 
sovereign,if  he  depen<l  on  municipal  means  of  enforcing  the  observance 
of  international  obligations,  instead  of  acting  preventively  to  that  end 
in  his  prerogative  capacity  as  sovereign. 

11    It  is  not  admissible  for  any  sovereign  to  i>lead  constitutional  dif- 
ficulties in  such  an  emergency ;  to  do  which  implies  surren- 
der of  the  rights,  as  well  as  abnegation  of  the  power,  of  a 
sovereign,  and  confers  on  the  injured  i)ower  the  right  to 
occupy  by  force  the  territory  of  the  incompetent  power,  and 


|i|f  i,l)<il  111  ;in.\vt>r  ti» 
:i  '  M  iini'  ul  *ui'h  \  tci 
lati  >n. 


\  See  Cnucliy,  Droit  maritimr,  tome  ii,  pp.  ;?74  iiiul  4<t4 
priott'  priv<V  dans  la  nuciic  iiiaritinic,  //UNvtm. 


Idem,  I>H  respect  de  la  pio- 


■Il.viikershoek,  (JHcstioHcx  .hiri'<  I'iil)liii,  1.  i.  c. 


I'lie  '■Siintissima   Triiiiihid."  Wlicat- 


on'rt  Heports.   vol.   vii.  p.   :Mtl.      riiilliiiuire,  \ol.    iii,    ]).  :!J1.      IMstoye   et   Duverdy, 
Trailr  thu  prixis  maritimrs,  t.  i,  ji.  '.UM. 
'Docmiieuts  with  the  message  of  l^residcut  ol'  (lie  United  States,  December,  1870. 


V  j 


s  J 


24 


ARGUMENT    OF    THE    UNITED    STATES. 


i^ 


to  impose  upon  his  subjects  that  preservation  of  order  which  he  pro- 
fessp'^  constitutional  inability  to  pieserve. 

"  Cnlp<(  vani^qnl  svit,  scd  prohiherc  mm  potest"'  is  indeed  one  of  the 
rules  of  private  right;  "but,"'  says  Sir  IJobert  Pliilllmore,  "such  an 
avowal,  actual  or  constructive,  on  the  part  of  the  unintentionally  in- 
juring State,  justifies  the  injured  State  in  exercising,  if  it  can,  that  juris- 
diction by  foreign  force,  which  ought  to  be,  but  cannot  be,  exercised  by 
domestic  law."' 

12.  But  no  independent  State  exists,  either  in  Europe  or^'imerica,  en 
cumbered  with  constitutional  incapacity  in  this  respect. 

Violations  of  neutrality  are  issues  of  war  and  peace.  Whatever  power 
in  a  state  declares  war,  or  makes  peace,  has  jurisdiction  of  the  issues  of 
peace  and  war,  including,  of  course,  all  violations  of  neutrality. 

In  point  of  fact,  such  authority  is  not  a  (piality  of  despotic  govern- 
ment oniy :  it  belongs  equally  to  the  most  constitutional  government, 
as  appears,  for  instance,  in  the  political  institutions  of  constitutional 
republics,  like  Switzerland  and  the  United  States,  and  in  constitutional 
monarchies,  like  Italy  and  l>r:^.7.il.- 

The  counsel  of  the  United  States  submit  these  propositions  as  unde- 
niable and  elementary  truths. 

Yet  the  Case  and  Counter  Case  of  the  British  Government  assume  and 
I)ersistently  argue  that  the  sole  instrument  possessed  by  the  British 
Government  to  enforce  the  performance  of  neutral  obligations  at  tiv 
time  of  the  occurrences  in  (juestion,  was  a  ])articular  act  of  the  Bi.t.  V 
rarliainent. 

Every  government  in  Europe  or  America,  except  Cireat  Ib'itain,  ass(nis 
and  exercises  authority  to  iireveiit  its  liege  subjects  (and  a  foyfiori  coiu- 
morant  aliens)  from  doing  acts  which  tend  to  involve  it  in  a  war  with 
any  other  government. 

IJut  the  Britisii  Government  maintains  that  tin*  sovereign  State  ot 
Great  Britain  and  Ireland,  tlie  ini)»erial  mistress  of  the  Indies,  the  proud- 
est in  fame,  the  richest  in  resources,  and  (including  her  transmarine 
possessions)  the  most  populous  of  the  great  States  of  Europe,  does  not 
possess  constitutional  power  to  prevent  mercenary  law-breakers  among 
her  own  subjects,  or  b;iiids  of  desperate  foreign  rebels,  commorant  on 
her  soil,  from  dragging  h"  into  acts  of  tlagraut  violation  of  neutrality, 
and  thus  attbrding,  or  tending  to  atl'ord,  just  cause  of  war  to  other  for- 
eign States. 

And  such  is  the  defense  of  Great  Britain  in  answer  to  the  reclama- 
tions of  the  United  States. 

l.'J.  It  would  be  ditlicult  to  tind  any  other  example  of  a  great  State 

vi„,p,i  ron.t.t,-  defending  itself  against  charges  of  wrong  by  setting  ui)  the 

fl'r'i^t  Bnil'r?.l!  p'^''^  <>t'  Jts  coust i t utiou al  incomitetency  and  incapacity  to 

""""'■"'•  discharge  the  mo.-'t  commonplace  duties  of  a  sovereign  State. 

Groat  Britain  is  not  in  that  condition  of  constitutional  disability 
which  her  ministers  pretend. 

We  tind,  on  the  most  cursory  ol)>iervation  of  the  constitution  of  Great 
Britain,  that  the  declaration  of  war,  the  conclusion  of  {)eace,  the  conduct 
of  foreign  affairs — that  all  tluse  things  are  in  (rreat  Britain  elements 
of  the  prerogative  of  the  Crown. 

We  cannot  believe  and  do  not  concede  that  in  all  these  greater  pre- 
rogative i>owers  there  is  not  included  the  lesser  one  of  prcceiitinfi  unau- 
thorized 


pri 


pri 


'<• 


'  Pliilliniore's  Iiiteniational  Law,  vol.  iii,  p. 'Jig. 

^See  Appendix  to  tbo  Auierican  Counter  Case,  cited  or  couauentod  wii  l;<'(rofter. 


GENERAL    DISCUSSION    OF    QUESTIONS    OF    LAW. 


25 


he  pro- 

e  of  the 
'such  an 
n.illy  in- 
latjiu'is- 
.'cised  by 

erica,  en 

er  power 
issues  of 

;  govern- 
ernment, 
titutional 
titutioual 

,  as  unde- 

sume  and 

e  liritisli 
is  at  th'^ 
le  \>i.'..  V 

in, asserts 
fiori  coin- 
war  with 

I  8tate  01 

he  proud- 

iisuiariiie 

(h»es  not 

s  auiony; 

loraiit  on 

leutrality, 

tther  for- 

rechiina- 

leat  State 
lifjf  up  the 
]pacity  to 
<in  State. 
Ilisability 

I  of  Great 
conduct 
tleaieuts 

ater  pre- 
]n(i  uuau- 
friendly 


•.•oft  or. 


foreigu  State,  and  thus  connnitting  Great  Britain  to  causes  of  publi<!  war 
on  the  part  of  such  foreign  State. 

If  the  exercise  of  such  power  by  the  Crown  involves  derogation  of  the 
rights  of  private  persons  which  ministers  fear  to  conmiit,  they  should 
obtain  a  proper  act  of  rarliament,  either  for  antecedent  general  author- 
ization or  for  subsequent  protection,  all  which  is  within  the  scope  of  the 
theoretic  omnipotence  of  Parliament.  The  British  ministers  do  not  scru- 
ple to  suspend  the  privileges  of  the  writ  of  habeas  corpus^  whether  with 
or  without  previous  i)arliamentary  authorization,  and  whether  in  the 
United  Kingdom  or  in  the  Colonies,  on  occasion  of  petty  acts  of  rebellion 
or  revolt,  that  is,  the  case  of  domefttic  war :  a  fortiori  they  should  and 
may  arrest  [ind  prevent  subjects  or  commorant  foreigners  engaged  in 
the  commission  of  acts  of  foreign  war  to  the  prejudice  of  another  gov- 
ernment. 

Js  it  possible  to  deny  or  to  doubt  that  British  ministers  might  as  well 
do  this  as  the  mini.sters  of  Switzerland,  Italy,  Brazil,  and  the  United 
States,  in  like  circumstances  'i 

Has  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
less  executive  power  than  the  President  of  the  United  States  '!  And  if 
she  have  less,  could  not  the  deficient  power  be  granted  to  her  by  act  o,i 
Parliament,  just  as  readily  as  similar  executive  i>ower,  in  this  relation, 
has  been  granted  to  the  President  of  the  United  States  by  their  Con- 
gress 'i 

14.  But  there  is  no  such  deficiency  of  power  in  the  I5ritish  ministers  ; 
their  own  conduct  in  pertinent  cases  i.rovesconclnsively  that  they  have 
the  jiower,  and  can  exercise  it,  when  they  choose,  without  atl'ordiiig  oc- 
(jasion  of  any  serious  doubt  or  denial  of  the  constitutionality  of  their 
acts. 

Be  it  remembered  that  the  excuse  of  the  British  Government,  tor 
omitting  to  detain  the  Alabama  and  other  confederate  cruisers,  was  the 
alleged  want  v»f  power  to  act  outside  of  the  foreign-en'istment  act. 

And  yet,  subse(iueiitly  to  the  escape  (>f  the  Alabaniii  from  the  iK)rt  of 
Liverpool,  on  occasion  of  the  construction  in  the  ixnts  of  Great  Briti>in 
of  certain  other  vessels  for  the  C(^»n federates,  commonly  spoken  of  as  the 
Laird  rams,  the  British  Government  .seized  them  ui)oii  its  own  responsi- 
bility in  virtue  of  the  i)rerogativ(^  power  of  the  Crown,  and  so  prevented 
their  departure  to  make  war  against  the  United  States. 

And  what  the  Ministers  did  on  this  occasion  was  fully  Ju'*titied  in  the 
f  icd-e  of  Commois  by  *^ir  lioundell  rainier,  the  then  attorney-general 
.)t'  <  •    -.It  Britain,  in  the  following  words  : 

J  u  <  mit  liositiit*^  to  sa>  boldly,  and  in  tho  faeo  of  tlio  country,  that  tlu>  fiovcrnmi'iit 
on  I  ir  h'.fii  rcxpoiiKihilitti  dctaiiu'd  tlicin.  They  wei'c,  jtrosccMitlny;  iiH|iiirifs  wliicli, 
*'■..;■;•  1  ii  jit'rft!('t,l('ft  oil  tlio  iiiiiid  of  the  f^ovcrmnent  st 'oiifj;  rcuHoiis  lor  ItdiiiviiiKtliat 
. '  b  1  .IT,  iiii;!;lit  jirovo  to  be  that  these,  .sliijis  were  iiiteiK.ed  for  an  ille<j;al  jmrpoise,  ami 
that  u'  they  left  the  eoiiiitry  the  law  would  be  violated  and  a  jjreat  injury  (huie  to  a 
friendly  jiower.  'I'lie  <roveiiiineni:  did  not  sei/.e  tlu!  sliip.s;  they  did  not  by  any  act  take 
pos.se.s.siou  or  interfere  with  theiii,  Imt  on  tliiir  own  rcsj  oimibiiity  they  naw  notieo  to 
tho  jtartiofi  interested  that  tiie  law  .should  no^  be  evadcd  until  the  iieiidiii<i  imniiry 
should  be  broiij^ht  to  a  eonelusio;.,  when  the  jfoverninent  would  know  whether  the  in- 
<iuiry  would  result  in  affonliiif^  eonelusixe  ;;roiiiid.s  for  sei/inj;the  ships  or  not.  If  any 
otlier  great  crime  or  mischief  were  in  progress,  could  it  be  doubted  that  the  jiovern- 
iiient  would  ^o  justiliid  in  taking  steps  to  prevent  the  (evasion  from  justice  of  the  per- 
son whose  conduct  was  under  Investigation  until  tho  completion  of  the  in<iuiry  '  In 
;'.  crindnal  case  Ave  know  that  it  is  an  onlinary  course  to  go  before  ii  niagi.strate,  and 
/  .  'rformation  is  taken  of  a  most  imperfect  character  to  justify  the  accused's  coin- 
iiiUtti  t(^  priscm  for  trial,  tho  prisoner  being  remanded  from  time  to  time.  And  that 
C(  nrse  cannot  be  adopted  in  cases  of  seizing  of  vessels  of  this  description;  tho  law 
gives  no  means  for  that.  And  therefore  it  is  that  tho  government,  on  their  own  re- 
sponsibility, must  act  and  have  acted  in  determining  that  what  had  taken  place  with 


l! 


¥ 


26 


ARGl'MENT    OF    THE    UNITED    STATES. 


rpgard  to  the  Alabama  should  not  take  place  with  respect  to  these  ships,  that  they 
should  not  slip  out  of  the  Mersey  and  .join  th(5  navy  of  the  bellijijerent  powers,  con- 
trary to  our  law,  if  that  were  the  intention,  until  the  inquiry  in  progress  should  be  so 
far  broujjht  to  a  conclusion  as  to  enable  the  government  to  judge  whether  the  ships 
were  really  intended  for  innocent  purposes  or  not. 

The  government  were  determined  that  the  iuquiries  which  they  were  making  should 
be  brought  to  a  legitimate  conclusion,  that  it  might  be  seen  wliether  those  inquiries 
resulted  in  evidence  or  not  of  the  vessels  being  intendeil  for  the  confederates,  and  that 
iu  the  mean  time  they  would  not  permit  the  ends  of  justice  to  be  balHed  by  the  sudden 
removal  of  the  ships  from  the  river. 

It  is  impossible  that  the  ca.sf  of  the  gONcrnmont  can  now  bo  brought  before  the 
house:  but  the  ijovernment  have  acted  v.nder  a  serious  sense  of  their  duty  to  them- 
selves, to  Her  Majesty,  to  our  allies  hi  the  United  States,  and  to  eirry  other  nation  with 
n-hom  Her  MajeKty  is  in  friendnhip  and  allianre,  and  with  whom  qnextions  of  this  kind  may 
be  liable  hereafter  to  arise.  I'nder  a  sense  of  that  duty  they  have  felt  that  this  is  not  a 
question  to  be  treated  lightly,  or  as  one  of  no  great  importance.  If  an  evasion  of  the 
statute  law  of  the  laud  was  really  about  to  take  place,  it  was  the  duty  of  the  govern- 
ment to  use  all  ]>ossible  means  to  ascertain  the  truth,  and  to  prevent  the  escape  of 
vessels  of  this  kind  to  be  used  against  a  friendly  power.  It  was  their  duty  to  make 
inquiries,  ami  to  act  if  there  was  a  good  ground  for  seizure,  taking  care  only  to  adopt 
that  procedure  which  was  justified  by  the  circumstances.' 

Aud  well  might  Sir  lliigb  Cairns  say,  on  that  occasion,  to  the  British 
minister:  '"  Either  our  Government  must  contend  that  wliat  they  did  in 
September  (that  is,  iu  the  matter  ot  the  Laird  rams)  was  unconsti- 
tutional, or  they  (  i  J'X  ^o  have  done  the  same  with  regard  co  the  Ala- 
bama, and  are  liahLi 

But  in  truth  the.se  raordinarj' i)rofessions  of  impotency,  on  the 
part  of  the  British  Government,  are  but  additional  proofs  of  the  negli- 
gent spirit  of  that  government  in  permitting  or  not  i)reventing  the  ex- 
pedition of  the  Alabama  and  other  vessels,  and  the  perilous  conse- 
quences of  which  they  had  come  to  appreciate  and  to  shrink  from  at 
the  time  of  the  arrest  of  the  Laird  rams. 

15.  There  is  another  pertinent  example  in  the  modern  history  of 
Great  Britain  of  the  power  of  her  ministers  to  arrest  such  expeditions 
when  they  have  the  desire. 

We  allude  to  the  celebrated  affair  of  the  so-called  Terceira  expedi- 
tion. 

During  the  pendency  of  the  civil  war  in  Portugal  on  occasion  of  the 
disputed  succession  between  J3onua  Maria  and  Don  Miguel,  certain  Por- 
tuguese refugees,  partisans  of  Donna  Maria,  sailed  from  England  in 
transports  osten.sibly  destined  for  Brazil,  but,  as  was  suspected,  in- 
tended for  Terceira,  in  the  Azores.  It  was  not  pretended  that  the 
transports  were  fitted  for  war,  and  the  Portuguese  on  board  were  un- 
armed. Nevertheless,  the  British  ministers  conceived  that  the  expedi- 
tion was  one  in  violation  of  the  neutrality  of  Great  Britain. 

Whereui)on,  they  dispatched  a  naval  force  to  pursue  these  vessels, 
and  to  prevent  the  persons  on  board  from  lauding,  either  at  Terceira,  or 
at  any  one  of  the  Western  Islands;  which  was  done,  and  the  Portuguese 
were  compelled  to  leave  the  waters  of  the  Azores,  and  to  take  refuge  iu 
France. 

It  is  to  be  noted  that  this  act  of  force  by  Great  Britain  in  the  main- 
tenance of  her  neutrality  was  done^uot  in  the  ports  of  Great  Britain,  or 
in  her  waters,  but  on  the  high  seas,  or. rather  within  the  waters  of  the 
Western  Lsh  ids,  and  in  the  actual  jurisdiction  of  a  sovereign  to  whom 
the  Portuguese  in  (juestion  professed  and  owed  allegiance;  for  Terceira 
then  acknowledged  the  power  of  Donna  Maria. 

No  pretense  existed  here  of  action  in  subordination  to  the  forms  of 
the  foreign  enlistment  act,  or  any  other  a(?t  of  Parliament.  What 
was  done,  was  <lone  simply  in  virtue  of  the  prerogative  power  of  the 
Crown. 


.1 
■I 


i. 


'  Documents  aune.\ed  to  the  American  Ca.se,  vol.  v,  p.  477. 


GENERAL    DISC  TSSION    OF    (^lE-STIONS    OF    LAV. 


27 


that  tliey 
ver-s,  cou- 
uld  be  80 
tho  ships 

iig  should 

inquiiies 

,  iiiid  that 

lie  sudden 

lei'ore  the 

to  thein- 

lation  with 

kind  may 

h  is  not  a 

iion  of  the 

le  }j;overn- 

escape  of 

y  to  m.ake 

f  to  adopt 

B  Britisb 
ey  did  in 
[incoiisti- 
tlie  Ala 

,  ou  the 
lie  iiegli- 
g  the  ex- 
is  conse- 
V  from  at 

istory  of 
peditions 

1  expcdi- 

)u  of  the 
taiu  Por- 
gland  in 
cted,  iu- 
that  the 
were  un- 
e  expedi- 

vessels, 
rceira,  or 
rtuguese 
L'efuge  in 


lie  luain- 
ritain,  or 
rs  of  the 
to  wliom 
Terceira 

forms  ot 
What 
ler  of  the 


prtM(nitti\e 
I  tht'  (.'njwij. 


The  eondnct  of  the  ministers  in  this  affair  was  earnestly  discnssed  in 
both  houses  of  Parliament,  and  was  approved  by  both  houses. 

But  it  is  remarkable,  and  i)ertinent  to  the  present  eontroversy,  that 
neither  in  the  House  of  Lords  nor  in  the  House  of  Commons  was  it 
maintained  that  the  ministers  had  on  this  occasion  overstepped  the 
limits  of  the  constitution  of  Great  Britain. 

The  objection  was,  that  the  British  Govenuuent  had  itself  committed 
a  breach  of  neutrality,  in  undertaking  to  intercept  the  transports  on  the 
high  seas,  or  within  the  legitimate  jurisdiction  of  one  of  the  belligerents ; 
and  that  the  act  was  a  violation  of  the  sovereignty  of  the  State  to  which 
the  island  of  Terceira  belonged. 

We  respectfully  submit  to  tliis  high  Tribunal  whether  it  is  not  idle  to 
pretend  that  lUitish  ministers,  possessing  the  constitutional  power  to 
pursue  and  arrest  the  Terceira  expedition  even  on  the  high  seas,  for 
violating  the  neutrality  of  (^eat  Jiritain,  have  no  power  to  prevent, 
even  within  the  i)3rtsof  Great  Britain,  the  expedition  of  men-of-war 
against  the  United  States.'  In  tine,  the  liritish  ministers,  it  is  impos- 
sible to  doubt,  had  the  same  constitutional  power  to  arrest  and  detain 
the  Alabama  in  the  ports  of  Great  Britain,  imperial  or  colonial,  as  they 
had  to  arrest  there  the  Laird  rams;  and  they  had  the  same  constitu- 
tional power  to  arrest  the  Alabama,  Florida,  Georgia,  and  other  confed- 
erate cruisers  on  the  high  seas,  as  they  had  to  arrest  there  the  Terceira 
expedition. 

IG.  And  the  existence  of  this  constitutional  executive  power  serves  to 
explain,  what  otherwise  wouhl  be  to  the  last  degree  incon- 
ceivable, that  is  to  say,  the  omission,  in  the  liritish  foreign- 
enlistment  act  of  18H),  to  provide  for  executive  action,  as  was  done  in 
the  American  foreign-enlistment  act. 

In  the  United  States,  it  was  necessary  to  impart  such  executive  i>ow- 
ers  to  the  President,  because,  according  to  the  tenor  of  our  Constitution, 
it  does  not  belong  to  tho  President  to  declare  war,  nor  has  he  final  and 
complete  jurisdiction  of  foreign  affairs.  In  all  that,  he  nuist  act  by  the 
authority,  or  with  the  concurrence,  as  the  case  may  be,  of  the  Congress, 
or  of  the  Senate. 

In  Great  Britain,  on  the  contrary,  it  appertains  to  the  prerogative 
power  of  the  Crown  to  declare  war  and  to  make  treaties,  either  of  bel- 
ligerent alliance  or  of  peace ;  and,  how  much  soever  in  practice  it  may  be 
customary  for  ministers  to  communicate  with  Parliament  on  these  ques- 
tions, it  is  not  the  less  true  that,  constitutionally  speaking,  the  prerog- 
ative power  resides  in  the  Crown. 

17.  The  affirmative  resolution  of  the  Biitish  ministers  to  call  this  pre- 
rogative power  into  action  for  the  sole  purpose  of  elevating  the  rebels  of 
the  United  States  into  the  dignity  of  belligerents  on  a  level  with  their  own 
sovereign,  and  thus  converting  piratical  cruisers  into  legitinmte  cruis- 
ers, and  the  negative  resolution  of  the  British  ministers,  in  refusing  to 
call  into  play  the  prerogative  of  the  Crown,  in  order  to  give  effect  to 
their  own  professions  of  neutrality,  injurious  as  even  such  ])rofessions 
were  to  the  United  States,  in  undertaking  to  pla«e  them  and  their  rebels 
in  the  same  category  of  international  rights, — these  two  resolutions  ren- 
dered it  possible,  as  it  would  not  otherwise  have  been,  for  the  confed- 
erates to  fit  out  cruisers  in  the  ports  of  Great  Britain  :  whereupon  ensues 
responsibility  of  Great  Britain  for  acts  of  the  Confederates,  in  which,  by 
ialse  theory  of  action  and  neaiiaence  in  fact  combined 


s  i 


to  the  prejudice  of  the  United  States. 


participt 


'See  the  facts  of  the  Terceira  exi)edition,  Pliilliniore's  International  Law,  vol.  iii, 
p.  2:i9. 


¥ 


IV.-MISCELLA.\E0U8  CONSIDEltATIONS. 


M.'uiy 

IIIiltliTS 

l'a«i'. 


The  13i'itisli  Case  and  Counter  Case  are  lartrely  oc('n{)ie(l  with  matters 
.  ,  „,  which  are  secondary,  immaterial,  not  to  say  totally  irrelevant, 
■,',';,;';  in  the  Judgment  of  the  counsel  of  the  Cnited  States,  but 
which,  being  seriously  presented   by  the  British  Govern- 
ment, seem  to  re({uire  attention. 

I.  Much  is  said  on  the  subject  of  the  British  foreign-enlistment  act  of 
iH  i,.at.,..nt  .1  ISID,  of  its  assumed  ade(iuacy,  of  its  value  relatively  to  the 

Inii-imVl.t'''  a,"t"'.".i  siuiilar  acts  of  the  United  States,  and  of  the  comparative 
"*''••  legislation,  in  this  resi)ect,  of  Cheat  Britain  and  of  other 

European  States. 

All  such  considerations  would  seem  to  be  foi'eign  to  the  subject  and 
beneath  its  dignity,  when  it  is  considered  that  laws  of  this  nature,  how 
much  soever  they  may  be  locally  (n)nvenient,  yet  do  not  serve  to  deter- 
mine the  duties  of  neutrality  in  the  international  relation  of  governments. 

It  is  quite  vain  for  the  JUitish  Covernment  to  assert  the  sutUciency 
of  the  foreign-enlistment  act  of  lSli>.  Its  practical  inetticiency  was 
glaringly  apparent  on  the  face  of  all  the  relative  dii»lomatic  correspond- 
ence between  Great  Uritain  and  the  United  States.  The  same  insutU- 
ciency  manifested  itself  in  the  legal  proceedings  in  the  case  of  the  Alex- 
andra in  such  degree  as  to  throw  contempt  and  ridicule  ni>on  the  whole 
act.  (Quibbles  of  verbal  criticism,  lit  only  I'or  insignificant  things  ot 
mere  domestic  concernment,  perva<led  the  opinions  of  the  great  Judges 
of  England  in  a  matter  closely  atfecting  her  international  honor  and 
foreign  i)eace.  It  needs  only  to  read  the  rei)ort  of  this  trial  to  see  how 
■  absurd  is  the  hy[»othesis  of  the  Hngiish  Case  and  Counter  Case,  in 
arguing,  that  any  ([uestion  of  peace  and  war,  between  Great  Britain  au<l 
other  governments  is  to  be  determined  according  to  the  jn'ovisions  ot 
that  act,  and  that  in  sr.vli  a  transcendent  (piestion  the  British  ministers 
are  under  the  necessity  of  tlouiulering  along  in  the  flat  morass  of  the 
meaningless  verbosity  and  confused  circundocution  of  any  act  of  Par- 
liament. Well  may  Sir  liobert  I'hillimore  speak  of  "its  loose  phrase- 
ology' and  disjointed  sentences."  '  Well  might  Baron  Channell  say  of 
the  language  of  the  act, "  more  imperfect  or  faulty  wording  I  can  scarce- 
ly conceive.''  -  We  cannot  understand  by  what  strange  i)erversion  of 
reason  it  is  that  the  British  Government  continues  to  maintain  that  its 
ministers  were  comi»clled  to  drift  into  the  condition  of  foreign  war 
rather  than  break  free  from  the  entanglement  of  the  cobweb  meshes 
of  that  act. 

But,  in  fact,  its  inetliciency  has  been  unequivocally  admitted  by  the 
enactment,  on  the  i)art  of  Great  Britain,  of  the  foreign-eidistment  act 
of  1870,  and  by  the  otlicial  inipiiry  vvhich  preceded  the  passage  of  that 
act. 

II.  "With  similar  sacrifice  of  the  principal  to  the  incident,  and  of  the 
large  to  the  minute,  the  British  Crovernment  insists  that  the 
British  act  of  1S19  is  equal  in  efficiency  to  the  American 
act  of  1818.    It  is  8tri),ngti  enough  that  tlie  British  Govern-  '""■ 

'  Iiitoiiiiitional  Law,  vol.  i,  ]».  4(>(i. 

-  Documents  aimoxed  to  Aiiit'iieau  Case,  vol.  v,  p.  440. 


II-  i<inipan'*iiTi  b'-- 
twi-i'jithi-  lii.li.-haiiil 
AiiuMJctn     iuls     Mil- 


4 


h 


MISCELLANKOUS    CONSIDERATIONS. 


2!) 


;h  matters 
irrelevant, 
states,  but 
i,h  Govern- 

lent  act  of 
rely  to  the 
•inparativo 
(I  of  other 

abject  and 
ature,  how 
,e  to (leter- 
verninents. 
sutlicieucy 
nency  was 
jorrespond- 
nie  insntli- 
f  the  Alex- 
L  the  whole 
t  thiufi's  ot 
■at  Judges 
onor  and 
to  sec  how 
V  Case,  in 
ritain  and 
)vi''«ions  ot 
ministers 
iss  of  the 
iict  of  Par- 
>se  phrase- 
lell  say  of 
an  scarce- 
\ersion  of 
in  that  its 
u'eign  war 
cb  meshes 

mI  by  the 
;tmeut  act 
ge  of  that 

and  of  the 

It-i  (■nni)>iiri'*nri  bi'- 
.-ti  tiK'  [Ir.ti.-h.Hul 
fMc.in     at  Is     Mil- 


iiient  should  make  this  suggestion  in  the  ])resenee  of  the  documents 
contained  in  the  ai>pendix  to  the  liritish  Case,  in  which  api)ears  the 
report  ef  the  British  minister  at  Washington,  Sir  Fredeiick  liruce,  on 
tlie  subject  of  the  foreignenlistnuMit  act  of  the  United  States,  pointing 
out  in  detail  the  plain  superiority  of  the  American  to  the  British  act.' 

The  great  ditference  between  the  two  consists  in  the  cardinal  fact 
that  the  provisions  of  the  British  act  are  merely  punitive,  and  to  be 
carrie«l  into  eil'ect  only  by  Judicial  instrumentality;  whereas  the  Ameri- 
can act  is  preventive,  calls  for  executive  action,  ami  places  in  the  hands 


th 


entir( 


States 

of  the  Government,  to  be  employed  b>  nim,  in  his  discretion,  for  the 
]uevention  of  foreign  equipments  and  foreign  enlistments  in  the  United 
States. 

Thus  deticient,  the  British  act  was  valueless,  except  as,  if  occasion 
should  arise,  to  make  it  serve  as  a  pretext  to  cover,  in  diplomatic  com- 
munication Avith  other  governments,  indift'er»nt,  unfriendly,  or  hostile 
animus  on  the  part  of  some  British  minister.  In  other  respects,  how- 
ever, that  is  to  say,  in  the  mirrow  limits  of  its  own  theory  of  municipal 
legislation,  the  l>ritish  act  is  utterly  inferior  to  the  American  act.  Sir 
Frederick  Bruce  clearly  shows  the  numerous  traits  of  superiority  in  the 
American  act.^ 

Thus,  in  the  United  States,  the  Government  not  only  derives  aid  in 
the  administration  of  the  law  from  the  oflicers  of  the  customs,  who  in 
Great  Britain  are  the  sole  dependence  in  this  respect,  but  it  has  local 
officers  in  the  princii>al  ports,  both  administrative  and  executive,  whose 
action  it  commands ;  it  may  impose  bomls  of  good  behavior  on  the  owner 
of  suspected  vessels;  informers  are  entitled  to  a  share  of  forfeitures,  and 
tlie  judicial  proceedings  have  advantages  not  to  be  found  in  the  British 
act. 

All  these  things  are  trivial  when  coiisidered  in  relation  to  the  great 
international  questions  of  neutrality,  and  of  peace  or  war.  But  we  are 
compelled  to  discuss  such  trivialities  by  the  extraordinary  i)ersistence 
of  the  British  Government  in  basing  its  defense  on  the  very  defects  of 
its  act  of  Parliament. 

III.  Of  these  ditt'erences  between  the  American  and  the  British  acts, 
and  of  the  singular  dertciencies  of  the  British  act,  the  ex- 
plamition  is  at  hand.  It  is  to  be  found  in  what  English 
writers  themselves  delicatelj'  describe  as  the  prcjudicus  of 
Cireat  Britain,  or  which  can  better  be  described  as  indisjio- 
sition  to  appreciate  fully  the  rights  of  other  governments. 

Tlie  United  States  encountered  the  question  of  their  own  right  of 
sovereignty  in  the  matter  of  foreign  e<iuipments  and  foreign  enlistments, 
and  the  relation  of  that  n»atter  to  their  own  peace  and  the  rights  of  other 
governnuMits,  at  the  very  commem;ement  of  their  career  as  a  sovereign 
State.  They  were  placed,  at  the  very  outset,  in  inesence  of  the  state  of 
universal  warfare  ])roduced  by  the  French  revolution,  being  exposed 
especially  to  the  extreme  exigencies  of  France  and  of  England.  They 
adopted  a  foreign  policy  of  peace  an<l  mnitrality.  They  determined,  if 
])Ossible,  not  to  be  drawn  into  the  vortex  of  war,  which  had  swallowed 
up  Europe  and  all  European  America.  The  Case  of  the  United  Statc.> 
has  related  with  fidelity  and  with  all  due  amplitude  the  measures,  admin- 
istrative and  legislative,  adopted  by  the  American  Government,  under 


Tl'**  Govi'r?ilntMil 
III  tin>  t^nili'ii  .Sl,iti'» 
liri-t  ill  .v;(y^  iMM'ti  :ill\* 
|.m-t  in  \in*^t:-*n  ii>tn^  - 
hitivi'  pownr,  sutK 
<ient  lor  Th''  lieit'irin- 

:i!.i->-   t:|    Its    lIlltli'M  :(,s 

II  ii.Mitriil. 


'  ApjH'iuliv  to  the  British  Case,  vol.  iii,  p.  67. 

•  Lord  Clarendoii.  says  Mr.  Bucliauan,  in  one  of  his  (lis])atchps,  roferrcd  to  our  iicu- 
trality  law  of  Ajiril  "20,  1818,  iu  terms  of  high  coini'.ieiidatioii,  and  pronouut'trd  it  supe- 
rior to  their  own,  t'upecinlljf  in  riijard  to  primteetx.     (App.  Am.  Case,  vol.  iv,  p.  (ii>.) 


f  t 


"■f 


30 


AKUUMENT    OV    TUE    I'NITED    STATES. 


•4 


the  inspiration  of  rresident  WasliinRton,  to  maintain  the  rights  of  non- 
trality,  in  spite  of  aj;:y;iession  on  both  sides,  whicii  at  length  compelled 
the  United  States,  in  tlie  defense  of  its  neutrality,  to  encounter  even  war, 
first  with  France  and  afterward  with  (Jreat  l»ritain.' 

Among  these  measures  was  the  enactment  of  that  act  for  the  preven- 
tion of  foreign  enlistments  and  naval  ecpiipments,  which,  in  all  the 
steps  of  the  present  controversy,  the  Uritish  Governme  nt  itself  cannot 
refuse  to  honor  and  applaud,  and  which  in  tiie  process  of  time  it  imi- 
tated in  its  own  domestic  legislation. 

The  American  (lovernment,  sincerely  professing  neutrality,  spared  no 
honorable  steps  to  give  ett'ect  to  its  professions  and  to  demonstrate  its 
good  faith.  Of  its  own  initiation  it  amended  its  legislation,  when  de- 
fects therein  became  apparent  to  its  observation ;  and  it  willingly  ac- 
cepted suggestions  of  amen<lnient  from  friendly  and  unfriendly'  foreign 
powers.  xVnd  it  has  steadily  adhered  to  the  doctrine  of  that  legisla- 
tion. 

The  American  Government  has  introduced  such  amendments  more 
than  once  at  the  suggestion  of  Great  IJritain,  not  deeming  it  wise  in  the 
sense  of  its  own  interests,  or  just  toward  other  governments,  to  stand 
obstinately,  as  Great  Britain  has  done  in  like  circumstances,  on  confess- 
edly defective  legislation  of  neutrality,  and  scorning  to  pretend  that  to 
do  Justice  to  such  suggestion  would  be  in  derogation  of  the  sovereign 
dignity  of  the  United  States. 

The  British  Government  alleges  that  on  a  recent  occasion  the  Ameri- 
can Government  indicated  purpose  to  repeal  or  materially  weaken  its 
foreign-enlistment  act.  That  is  an  error.  Every  member  of  the  Congress 
of  the  United  States  has  the  right  to  initiate  measures  of  legislation. 
No  exclusive  right  in  this  respect  belongs  to  the  President,  (that  is,  the 
executive  Government.)  The  I'resident  of  tlie  United  States  has  not 
proposed  the  repeal  or  the  diminution  of  the  American  neutrality  act. 
A  member  of  the  House  of  Kepresentatives  did  propo.se  some  amend- 
ments to  that  act  tending  to  weaken  its  force ;  but  his  proposition  was 
not  inspired  by  the  Executive,  and  was  not  adopted  by  Congress. 

Not  only  in  its  legislative  measures,  but  in  its  diplomatic  intercourse 
with  other  government.s,  the  United  States  diligently  and  sedulously 
pursue  the  policy  of  neutral  right,  and  especially  the  immunity  of  the 
ocean,  by  exerting  themselves  on  all  fit  occasions  to  introduce  these 
principles  into  its  treaties  with  other  governments.  D.  Carlos  Calvo 
calls  attention  to  a  "  curious  document"  publi.shed  by  the  minister  of 
marine  of  the  French  Empire,  in  1854,  which  enumerates  some,  but  not 
all,  of  the  treaty  stipulations  of  this  class  initiated  by  the  United  States.-' 

We  tttul  this  (locnmetit  in  Pistoye  et  Diivindy's  Tniitv  dcs  jirixei^  maritlmen.  tome  ii,  p. 
4'.)'i,  and  cite  Home  portions  of  it  to  show  the  ostiniatioii  in  whicli  the  neutral  faith  anil 
the  neutral  dili<jftnce  of  the  United  States  have  been  held  in  France : 

Les  journanx  de  France  et  d'Anjjleterre  (says  the  document.)  d'ajtres  cenx  des  fltatn- 
Unis  d'Ani<^ri(|ue,  parlent  d'ofhciers  rnsses  envoyos  a  New  York  avee  la  mission  osten- 
sible de  survciller  la  construction  do  batiments  a  helice  pour  le  compte  de  leur  gou- 
vernement;  mais  en  realite.alin  d'orj^aniser  dansles  pints  de  Tunion,  aunioyende  lettres 
de  mar(|ue  dc^livrees  au  nom  dn  gouvernement  russe  anx  citoyens  americains.  des  ar- 
niements  en  cour.se  contre  lo  connnerce  fran^ais  et  anglais  jtendant  la  guerre  devenue 
imminente  entre  la  France  et  I'Angleterre  <ruue  part,  et  la  Rnssie  de  I'autre.  Le  Morn- 
ing Post  rappelait  recemment,  acesnjet  <[uC  le  droit  conventionnel  et  la  legislation  des 
fitrtts-Unis  leur  faisaient  nn  devoir  d'enipecher,  et,  au  besoin,  de  punir  de  tels  actes 
d'hostilitc  contre  le  pavilion  d'uue  puissance  en  paix  avec  I'union.  Ce  Journal  citait 
mtiujo  quehiuc.s  traites  dans  lescpiels  I'acceptatiou  ([Ue  des  citoyus  americains  feraient 
do  lettriiH  do  marque  (^tiangeres  pour  courir  sns  anx  navires  de  la  puissance  cosigna- 
taire,  est  assimiltie  i\  la  piraterie  et  rendue  passible  du  meme  traitenieut.    On  va  donner 

'  Cauchy,  Droit  marilimv,  tonui  ii,  p.  2'Mt  et  neq. 
*  See  Calvo's  Dinxho  Iiitirnacional,  tome  ii,  p.  181. 


'i 


i 


i 


MISCELLANF.OrS    CONSIDKRATIOXS. 


31 


tsof  noii- 
;oinpclle<l 
even  war, 


e  preven- 
11  all  tlic 
^It'  cannot 
le  it  imi- 

8pared  no 
istiate  its 
when  ile- 
Uinglj'  iic- 
\y  foreign 
at  lefiisla- 

ents  more 
vise  in  the 
,  to  stand 
an  c'oufess- 
nd  tliat  to 
sovereign 

he  Ameri- 
reaken  its 
3  Congress 
egislation. 
hat  is,  the 
bs  has  not 
trality  act. 
le  aniend- 
sition  was 
ress. 

iiterconrse 
edulously 
ity  of  the 
ice  these 
los  Calvo 
ninister  of 
le,  but  not 
Bd  States.-' 

.  tonic  ii,  p. 
:il  faith  aiul 


s 


issioii  oston- 
(If  Ifur  goii- 
•eu  de  letnm 
ains.  (les  ar- 
^ire  devemu' 
Le  Morn- 
ii;islatioii  den 
do  tela  actos 
>urnal  citait 
lius  foraiciit 
lice  cosigna- 
hi  va  donner 


ici  la  noineuelature,  ausHi  conipli-te  que  possible, dps  conventions  cohcIuch  par  Ion  Rtats- 
Unis,  et  dans  IchiiucIh  ce  priiicipe  a  ete  t'orniellonient  coiiHaere. 
The  document  then  refers  to  the  American  foreij^n -enlistment  acts,  and  continues: 
Le  fjouvernement  amerieuin  a  deja  eu  ruceasioii  de  numtrer  (ju'il  »'"tait  decide  a  retti- 
plir  loyaleuient  les  (>hlij{ations  internationales  (jiii  lui  sont  imjiosi^es  par  cette  It'jjisla- 
tion.  Kii  1H:{8,  lors  du  hlocus  des  ports  du  Mexiquo  et  de  la  Kepubli<|ue  Arjientine  par 
uds  forces  navales,  le  niiiiistere  de  Franci?,  a  Wasliinj^ton,  ayant  eu  lieu  de  craiiulre 
(lu'on  arniat  dans  les  ports  de  rnnion  des  corsaires  iiinnis  do  lettres  de  iiiartpie  des 
;;ouverneinents  du  Mexique  et  de  Huenos-Ayres  j)oiir  courir  siis  aux  navires  tranvais, 
avait  appele  sur  c»;t  ol)jet  I'attention  du  cabinet  am«^ricain.  Lti  secrc^taire  d'r.tat,  >L 
Forsyth,  lui  donna  I'assurance  (lue  dt;  tels  arnieiut  nts,  s'il  s'en  laisait,  ne  seraient  point 
toleri^s. 

Cest  ii  quoi  le  {(onvernnient  federal  ne  se  croirait  sans  doute  yias  nioins  essentielle- 
nieut  obliffe,  w  Ton  tentait  anjonnl'hui  d'organiser,  dans  les  ports  ainericains,  nii  sys- 
tenie  dc  course,  sous  pavilion  russe,  contre  le  eoninierce  de  la  France  et  dt^  l'An<;leterre. 
II  surtisait,  tout  porte  a  le  croire,  de  signaler  de  seiublables  projets  a  sa  vij^ilance.  pour 
qu'il  s'enipressat  de  prendre  des  uiesures  aussi  proniptes  (lu'efhcaces,  dans  Ic  but  d'as- 
siirer  la  complete  execution  des  lois  en  vifjueur.  Le  so'ivernnmet  qui,  eu  l&-l'^,  \tTO- 
posait  a  I'Angleterre  et  a  la  IJussie  de  conclure  une  convention  pour  dViterniiner,  sur  les 
bases  les  plus  liberales,  les  droits  des  neutres  en  temps  do  guerre,  et  notamnient  ]>our  la 
suppression  de  la  course  niaritinu',  acto  dont  la  France  venait  de  prendre  I'luitiative  a 
I'occasion  de  la  guerre  d'F]si)agne,  ce  gouvernement-ia,  disons-nous,  ne  pent  <iuY'tre  dis- 
pos«^  a  conformer,  en  ce  qui  d<^pendra  de  lui,  sa  politique  et  sa  conduito  an  sentiment 
iionorable  qui  le  portait  alors  si  cousiderer  comme  opportun  de  "  reveiidi(iuer  et  relia- 
biliter  les  lois  de  IVcjuiK''  naturelle.  et  d'etendre  en  nier  rinlhience  bit^nfaisante  des  pre- 
cejites  «le  la  charite  chretienne."'  (Note  adressee  par  M.  Middleton,  ministre  des  fitats- 
IJnis,  a  Saint  Petersbourg,  au  comte  de  Nesselrode,  le  5  dt'cembre,  1H2H.) 

IV.  In  singuhtr  contrast  with  this  pohcy  of  the  United  States  has 
been  the  policy  of  (Jreat  Britain.  Slie,  one  of  the  oldest 
tnaritime  states  of  Europe,  had  no  legislative  prohibitions  of  rJ\^ll^lT\"'\r^!^- 
private  maritime  e<iuipment  for  hostile  purposes,  until  long 
after  such  legislation  existed  in  the  United  States,  llow  did  this  happen  ? 
We  may  conceive  the  reasons  of  this,  when  we  reflect  upon  the  numerous 
piratical  enterprises  titted  out  in  former  times  in  ports  of  Great  Britain 
against  the  possessions  of  Spain  in  America,  and  the  honor  accorded  to 
the  chiefs  of  those  expeditions,  such  as  Drake  and  Hawkins  ;  and  when 
we  reflect  further  that  British  legislation,  in  this  respect,  only  com- 
menced when  most  of  the  Si)anish  colonies  in  America  had  made  them- 
selves independent  of  Spain. 

But,  even  then,  it  required  all  the  official  and  personal  authority  of 
Mr.  Canning,  and  of  the  government  of  which  he  was  a  member,  to  over- 
come the  vis  incrti(v  of  the  prejudices  in  this  relation  so  deeply  rooted  in 
the  mind  of  Great  Britain. 

In  reading  the  debates  in  the  British  Parliament  on  occasion  of  the 
passage  of  the  act  of  1819,  it  is  notable,  tirst,  that  the  opposition  to  the 
enactment  seemed  to  be  absolutely  unconscious  of  all  those  principles 
of  international  morality  involved  in  the  question  ;  and  secondly,  that 
the  opposition  seemed  incapable  of  looking  beyond  Spain  and  Spanish 
ximerica,  taking  no  thought  of  the  duties  of  Great  Britain  toward  other 
governments  of  Europe,  and  toward  the  United  States.' 

It  is  most  interesting  to  see  how,  on  this  occasion,  Mr.  Canning  tow- 
ered above  the  other  debaters,  what  clear  perception  he  exhibited  of  the 
philosophy  of  the  question,  and  what  distinct  knowledge  of  the  true 
l)rinciples  of  international  law,  in  contrast  with  the  shallow  arguments 
of  even  so  eminent  a  person  as  Sir  James  Mackintosh. 

Four  years  afterward  the  debate  was  resumed  in  Parliament,  on  a 
motion  made  by  Lord  Althorpe  for  the  repeal  of  the  foreign-enlistment 
act.  On  that  occasion  Mr.  Canning  again  distinguished  himself  by  the 
courage,  the  eloquence,  the  statesmanship,  and  the  elevation  of  view, 
with  which  he  combated  the  prejudices  of  his  countrymen.    He  referred 

'  See  Uaneard's  Parliamentary  Debates,  vol.  xl,  jiasaim. 


i 

P 

M 


« : 


M 


'>0 


AluaiMKNT    OF    THE    UNITED    (STATES. 


I..'ai-iliitii 


n|.,tl,.T 


Di^tinil  I.)  II    I.  ■•• 

t^^■t•lMl         lirt'Xfhtlnni 
llll'l  |)>>lllilllMt-llt. 


to  the  Unitod  States  in  languaj^e  whicli  every  American  may  read  with 
pride,  and  winch  is  jx'rtinent  to  tlie  j)resent  line  of  observation  on  tlie 
partoftlie  connsel  of  tlie  American  Government. 

And,  unfortunately  for  the  g^ood  uiulerstandin;-;  of  (ireat  ]>ritain  and 
the  Uiii'AMl  States,  the  Jiritish  (roverument  is  not  yet  fully  emancipated 
from  servitude  to  the  traditional  national  prejudices  which  obstructed 
Mr.  Canuinj:.  For,  as  the  Case  and  ('ounter  Case  of  the  IJritish  Govern- 
ment show,  it  still  la^s  behiml  the  United  States  in  a|)i)reciation  of  the 
true  principles  of  public  law,  which  lie  at  the  foundation  of  th'?  rela- 
tions of  indei)endent  sovereii»'n  States. 

V.  The  Hritish  Case,  in  strange  nii.sa|)i>rehension  of  the  fivcts,  assumes 
that  municipal  laws  for  the  preservation  of  neutrality  ex- 
ist only  in  ihe  United  States  and  Great  liritain.  IVlean 
wliile  the  report  of  tlie  English  neutrality  laws  commission,  contained 
in  the  api)endix  to  the  ]iritish  Case,  exhibits  in  detail  the  legislation  of 
this  class  adoi)ted  by  most  of  the  governments  of  Euroi)e. 

in  the  British  Counter  Case,  it  is  true,  the  foreign  laws  of  this  class 
are  at  length  recognized,  but  with  rehnements  of  imaginary  distinction, 
which  tend  to  leave  some  doubt  in  the  mind  whether  the  Counter  Case 
does,  or  does  not,  adnnt  the  error  of  the  Case.  The  Counter  Case  does 
uot  seem,  even  now,  to  see  clearly  that  all  these  laws,  what 
ever  be  the  diversity  of  form  or  of  nomenclature  among 
them,  are  pervaded  by  one  identical  idea,  namely,  the  pre- 
vention as  well  as  punishment  of  acts  of  private  persons,  such  as  the  en- 
listment of  soldiers  or  mariners,  or  the  expedition  of  men-of-war,  or  of 
letters-of-marque,  in  derogation  of  the  local  sovereignty,  and  tending  to 
involve  the  local  government  in  war  with  other  governments. 

Sir  llobert  Phiilimore,  himself  a  member  of  the  commission,  expresses 
the  identity  of  theory  and  object  in  this  relation  between  the  laws  of  the 
United  States  and  Great  Britain,  and  those  of  other  governments,  as 
follows:  "It  a])i)eared  from  evidence  laid  before  the  English  neutrality 
laws  commission,  ai)pointed  by  the  Queen  in  1807,  (the  recommendations 
of  whose  repoit  are  mainly  incorporated  in  the  present  and  recent 
statute,)  that  Euroi)ean  States  generally  were  furnished  by  their  muni- 
cipal law  with  the  means  of  fidtilling  their  internatioucal  obligations  in 
this  resi)ect."  ' 

But  the  indirect  or  implied  retraction  in  the  British  Counter  Case 
does  not  relieve  us  from  the  necessity  of  examining  the  legislation  of 
other  governments,  and  their  executive  action  in  the  premises,  because 
that  examination  will  show  that  the  general  conscience  of  the  world  re- 
jects the  theory  of  the  British  Government,  and  conforms  to  that  of  the 
United  States." 
(«)  We  commence  with  scrutiny  of  the  actual  legislation  of  France, 
because  that  legislation  is  the  model  of  the  modern  legisla- 
tion, in  this  respect,  of  many  other  governments. 
The  provision  of  the  French  Code  Penal  is  as  follows  : 

AitTicr-K  .'^4.  Qniconque  aura,  par  ties  actes  non  approuvt^s-par  le  gonvfiruement,  ox- 
])oso  I'otiit  a  iiiif  il(^claration  ile  guerre,  sera  puui  dii  baimissemeut ;  et,  si  la  guerre  8'en 
est  isuivie,  «lo  la  ileportation. 

AiMici.i".  <).  Quieonque  aura,  par  des  acte.s  non  approuvos  par  le  gouverneinont, 
expos('  ties  Fran(,ais  a  6prou>tr  ties  rtiprt^sailles,  sera  puui  du  baunissemcut. 

The  general  commentaries  we  make  on  these  two  articles  will  apply 
to  similar  provisions  of  law  of  other  governments. 


KiMIlCt' 


i 


I 


.1 


'  International  Law,  vol,  i,  p.  467. 


MISCELLANEOUS    CONSIDERATIONS. 


33 


ail  with 
1  on  thP 

ain  ami 
icipated 
<tru(!totl 
Govoni- 
i  of  the 
the  lehi 

assmnos 
ality  ex 
Meau- 
[)ntaine(l 
latiou  of 

his  chisH 
tinctiou, 
ter  Case 
;ase  does 
V8,  what 
■e  ainouf;' 
the  pre- 
is  the  eu- 
rar,  or  of 
3iuling  to 

pxpresses 

\vs  of  the 

ments,  as 

leutrality 

udatious 

\d  receut 

'ir  muui- 

atioiis  in 

iter  Case 
slatiou  of 
,  because 
world  re- 
at  of  the 

[  France, 
[n  legisla- 


lieuient,  cx- 
1  {f uene  s'eii 

Ivcniemoiit, 


,'ill  apply 


To  the  caMuul  reader  of  them  the  first  iilca  whiith  siig<iests  itself  is 
their  brevity,  as  compared  with  eorrcsijondinj?   legishiticm  of  (Jreat* 
r.ritain  and  the  United  States. 

But  caiefiU  examination  shows  tiiat  they  express  in  plain  language 
the  true  object  and  theory  of  all  such  havs,  which  is  to  pimish  private 
jtersons  who  undertake  acts  of  war  by  land  ami  sea,  in  derogation  of 
the  sovereignty  and  in  prejudice  of  the  peace  of  their  country ;  and  that 
they  do  it  etiectually,  but  in  terms  of  equal  terseness  and  precision. 

On  the  other  hand,  the  English  acts  are  so  overloaded  with  a  mass 
of  phrases,  alike  unprecise  and  confused,  with  so  miu'li  of  tedious  super- 
Unity  of  immaterial  circumstances,  as  if  they  were  specially  designed  to 
give  scope  to  bar  chicanery,  to  facilitate  the  escape  of  offenders,  and  to 
eud)arrass  and  confound  the  ollb-ers  of  the  government  charged  with  the 
administration  of  law.  Such  indeed  has  been  the  ordinary  comj)lexion 
of  the  legislation  of  (Ireat  Uritaiii,  and  this  style  of  (U)mi)lex  verbosity 
of  legislation  has  unhappily  been  transmitted  to  the  United  States, 
although  there  it  begins  to  encounter  steady  etl'orts  of  reformation, 
which  are  conspicn(»us  in  the  legislation  of  many  of  the  American  States. 

These  are  secondary  consiilerations,  however.  Tiie  important  point 
is,  that  neither  the  administrative  nor  the  judicial  functionaries  of 
France,  nor  her  legislators  and  statesmen,  ever  conceived  that  the  pro- 
visions of  her  penal  code  were  anythnig  more  than  what  they  i)rofess  to 
he,  namely,  the  means  of  punishing  the  crimes  of  private  persons.  States- 
men and  legislators  of  France  nev(>r  imagined  that  these  provisions  of  the 
penal  code  are  the  measure  ami  limit  of  her  sovcrign  rights  or  of  her  sov- 
ereign duties.  Incidentally  those  provisions  nmy  come  in  aid  of  execu- 
tive action.  Jiut  to  punish  individual  wrong-doers  does  not  prevent 
wrongdoing,  save  incidentally  by  admonition  and  exami)le.  Funitive 
legislation  is  one  thing,  i)reventive  another;  and  the  oidy  ellectual  ))re- 
vention  of  the  wrongful  acts  of  private  persons,  which  teiul  to  comi)ro- 
niise  tlie  neutrality  ol  a  (lovernnuMit,  is  the  summary  act  of  forcible 
l)revention  of  sucli  deeds  by  the  sui)renu^  authority  of  the  (jiovernment. 
Such  is  the  theory  of  the  laws  of  France  in  this  behalf,  as  it  is  of  the  laws 
of  the  United  States.' 

This  ai)prcciation  of  the  articles  of  the  French  Code  Pi'nal  is  confirmed 
by  authoritative  commentaries  then'on,  some  of  which  are  reproduced  in 
the  documents  annexed  to  the  American  Counter  Case. 

Acconbngly,  it  is  to  be  renuMubered  that  no  cruisers  sailed  from  the 
ports  of  France  to  dei)redate,  under  the  Confederate  flag,  on  the  com- 
merce of  the  United  States. 

At  the  very  commencement,  all  Frenchmen  were  forbidden  by  sov- 
ereign act  "  to  take  a  commission  from  either  of  the  two  i)arties  to  arm 
vesj«'l.s  of  war,  or  to  accept  letters  of  niarijue  for  a  cruise,  or  to  assist  in 
any  manner  intiie  ecpiipment  or  armament  of  a  war- vessel,  or  privateer, 
of  either  of  the  belligerents."-' 

And  when  attempts  weie  made  by  the  Confederates  to  cc  is  ruct  and 
equip  cruisers  in  the  ports  of  France,  on  complaint  being  made  by  the 
minister  of  the  United  States,  the  construction  of  these  vesnels  was 
arrested  ;  and  when  a  builder  professed  that  vessels  under  construction, 
with  suspicion  of  being  intended  for  the  Confederates,  were  in  fact  in- 
temled  for  a  neutral  government,  the  French  ministers  recjuired  proof 
of  such  professed  honest  intention,  and  carefully  watched  the  vessels  to 
make  sure  that  they  should  not  go  into  the  service  of  the  Confederates. 

'See  <locTuiiouts  iuuiexcd  to  the  Aiuericaii  Counter  Case,  pagfs  tO)  d  seq, 
-See  Docuiueuts,  abi  nupra,  p.  912. 

3  0 


&i 


y  ? 


M 


AIKilMKNT    OF    TUK    IMTKI)    srATKS, 


On  tins  point  we  t|ii<>ti'  tlic  'limgiiii^c  of  tlio  niiiiistor  of  niiiriiio,  uh  fol- 
lows : 

'I'lif  M'M-ii  Is  di"  wiir  ti>  w  liicli  .vow  liiiM'  (ill  led  our  ntlriition  sliiill  not.  Icisn  the  port.H 
of  I'liiiicf  Miitii  it  ,-.i\!ill  liiivc  till  II  |iositi\rl,v  dfinoiislrjilcd  that,  their  (IcHtiiiatioii  docH 
not  iill'cct  lilt'  )iiiii(i|)irs  (if  ncntiiiiil.v,  \\  liicli  tliii  I'rcncli  ( Jo\  n  nninit  wislics  to  ri^jidly 
ol»H('i'\  e  to\\aiil  Ixitli  iMlli'jjciTnts.' 

CoTitnist  tills  with  flu'  roiidiict  of  tlic  IJrilish  (Jovcrmm'iit  in  like  cir- 
ci'.iiistiiiiccs,  ascxliiliitcd  in  tin*  iinnl.ysis  of  facts t'onipiiscd  in  the  i>i('Sont 
Arxiinicnt,  whcio  it  is  sliown  with  what  inci't'dibhi  cnMlnlity  the  Mritish 
(lovcrnnK'iit  iicccjitcd  t  lir  fiils(»  iiinl  <l('('('i>tiv«'  statcnu-nts  of  the  criminal 
and  iiuM'cenai y  ship  bnildcis  ongajjed  in  the  \  iolation  or  evasion  of  the 
laws  of  (iieat  JJritain. 

It  HMpiires  exei-cise  of  innch  candor  tohclieve  that  the  JJritish  ntinis- 
ters  coidd  have  jierniitted  themselves  to  be  stj  grossly  imjiosed  njion,  if 
they  desired  to  know  the  truth.  Had  they  tlone  what  the  J'^reneh  Gov- 
ernment did  in  like  circninstances — if  th(\v  had  required  the  known 
tools  of  Confederates  at  Iviverpool,  as  ini;;ht  well  liuvc  been  «lone  in 
virtue  of  the  ])rovisions  of  tlie  merchant  shipi)in<?  act,  and,  indeed,  of 
the  forei<;'n-enlistment  act,  to  make  proof  of  pretended  honesty  of  pnr- 
])ose, — the  present  controversy  between  tlio  two  (rovernnients  niiyht  not 
ever  have  arisen. 

Jn  like  manner  the  condin.'t  of  l-'rance,  re;>'ardin<;'  the  remanidn^  of 
Confederate  cruisers  in  her  i)orts,  is  in  striking;  contrast  with  the  conduct 
of  the  JJritish  (lovernment  in  referenct!  to  the  same  snbject-matter. 

(/>)  All  the  observations  rej;ardin<;'  the  legislation  of  France  apply,  in 
snbstance,  to  the  l(^j;islation  of  Italy,-  and  the  reftidations 
of  the  (lovernment  of  Italy,  inclndinfjj  circulars  of  the  minis- 
ter of  marine,  and  decrees  of  the  Kin^-,  all  with  distinct  reference  to  the 
present  controversy,  are  (lomprehensive,  definite,  and  explicit  in  "J 
veiitinji',  as  they  did  ))ievent,  any  attempt  of  the  Confederates  to  i  t 
crniscrs  in  the  ports  of  Italy,  to  abuse  tiie  vi<>'ht  of  asylum,  or  to 
therefrom  aj^ainst  the  comnu'rco  of  the  United  States. 

All  these  measures,  in  lorm  and  effect,  assumed  i)reventive  action  by 
the  executiv(»,  independently  of  the  i)eiial  provisions  of  the  nuini(;ipal 
laws  of  Italy.' 

The  universality  of  laws  of  this  class  in  the  vai'ious  countries  ol 
Europe  is  indicated  by  recent  Italian  Juridical  writers.' 

(c)  In  like  manner,  examiiuition  of  the  laws,  re^'idations,  and  political 
action  of  Switzerland,  in  the  matter  of  neutrality,  shows 
their  conformity  in  theory  with  that  of  the  United  States, 
and  emphatically  contradicts  that  of  (Jreat  iJritain. 

The  Code  priud  jVdrrnl  of  Switzerland  is  in  this  respect  more  concise  and 
comprehensive  even  than  that  of  France,  for  it  intiiuts  ])unishment  on 
all  persons  guilty  in  Switerland  of  committing  anj-  act  contrary  to  the 
law  of  nations.^' 

Various  ordinances  of  the  Federal  Council  contaiu  the  most  strinjjjeut 
provisions  for  the  nuiintenance  of  the  neutrality  of  the  republic.'' 

A  federal  law  of  Switzerland  regulates  in  the  fullest  manner,  and  with 
all  proper  restrictions,  the  enlistment  of  troops  iu  the  territory  of  the 


'  Sec  DocuiiicntH,  iilii  iiiq)ra,  p.  912. 
'Dociinuiiits  as  above,  i».  1149. 

■'See  Docmnents  aniicxiMl  to  tlio  American  Case,  vol.  iv,  p.  ir>0  d  saj. 
^  See  Feiraiotti,  Vommcnlario  del  codivf.  pcnale,  vol.  i,  pp.  '2C1-2;   and  Castelleri,  J.ciji^ 
hiz'mui  eompnrale,  p.  284. 
''  Doeiiment  annexed  to  the  Anierlc^an  Counter  Case,  p.  Ifl'J'i. 
''  Uhi  mipra,  ]).  110.'). 


NflSrKM.WKOl'S    CONSIDKRATJONH. 


M 


i>^j|,  IH  1  lie  for  I'oivij^n  scrvir*',  ]>r()vi(liiij;  tliiit  it  sliiill  not  Ix'  <l»)ii('  witliout 
tiic  express  ixMiuission  «)l"  the  {jovciiiiiirnt ;  sunl  various  ollicial  reports 
(leiiionstrate  the  aetive  ellicieiiey  of  tlii^  I'ecleral  ;;-over!iiiu'iit  in  (lel'endinif 
l|  its  neutrality,  not  merely  by  mnnicipal  laws,  to  hi'  executed  by  the 
courts,  but  by  the,  most  complete  exocnlive  action  suppoifed  by  the 
military  Ibi'ce  of  the  i'<>public.' 

{(I)  Similar  conclusions  apply  to  the  h'j'islatit>n  and  the  administrative 
action  of  the  empire  of  llra/il:  in  considering-  whii^h  it  will 
be  convenient  also  to  refer  to  the  lejjislation  and  administra- 
tive action  of  Portuj^al,  because  of  the  similarity  ol"  their  laws,  and  the 
more  or  less  of  common  commentary  thereon  by  juridical  writers  in  one 
country  or  the  other,  of  eminence  and  authority. 

The  penal  code  of  rortuj^al  in  this  re!j[>ect  is  substantially 
the  same  as  that  of  France.-  i' .tM^,! 

That  of  J»ra/il,  while  compreheiulin;,'  the  sanu'  idea,  is  nioi'e  comidete 
in  itsdevelopnu'ut. 

I>y  that  code  it  is  a  crime  on  the  part  of  any  individual  to  "  i»rovoke 
directly  and  by  acts  a  forei};n  nation  to  (h'clare  war  aj;ainst  the  empire," 
or  "if  in  ease  no  declaration  of  war  take  idace,  but  in  eonsetpuMuie  of 
such  provocation  there  should  bo  necessity  for  any  sacrifice  on  the  part 
of  I>ra/il,  or  ])reiudice  of  her  inteji'rity,  <li;;nity,  or  interests."' 

Jiy  that  code  it  is  also  made  a  crime  to '•commit,  without  order  or 
authority  ot  the  government,  hostilities  against  the  subjects  of  anotlu'r 
nation,  so  as  to  com|)nuni^.e  peace,  or  juovoke  reprisals." 

Furthermoi'c  it  is  declared  to  bi^  jtiracy  "  to  )»ractice  on  tliescaiiny 
act  of  depredation  or  vioh'uce,  whether  against  Jira/iliaiis.  or  against 
foreigners  with  whom  Ibazil  is  not  in  a  state  of  war."' 

]>()th  in  JJra/il  and  Tortugal  these  ju'ovision^  of  the  penal  code  are 
but  incidental  only  to  the  executive  action,  which  prevents  by  sui)reme. 
authority  any  violation  of  their  neutrality,  eitlier  1>\  snltjects  or  by 
foreigners. 

AVe  beg  leave  to  r<'fer  this  high  tribunal  to  the  adiiiinistrative  reguUi- 
lionsof  the  JJra/ilian  ICmpire.  for  the  enforcement  of  neutrality  in  all 
the  ports  of  the  lOmpire,  in  the  amplest  manner,  by  eflicient  action  on 
the  pan  of  the  imi)erial  ministeis,  and  of  the  provincial  presidents.' 

Jn  the  American  ('ase,  ami   the  docunu'Uts  to  which  it  I'efcrs,  thei-e  \n 
sullicient  indi<'ation  of  the  loyalty  and  elili(;iency  with  which  the  JJrit- 
zilian   Cioviunment  maintained  its  soven'ignty  against  the  aggressive 
I   eiforts  of  the  Confederates.-' 

I  As  to  Portugal,  we  refer  to  the  ecu  respondcnce  annexed  to  the  Ameri- 
can Counter  Case,  to  show  that  she  also  inner  i>retendcd  that  her  neutral 
duty  was  conlined  to  the  execMition  of  the  provisions  of  her  i)enal  ctKle. 
Who  also  put  forth  the  executive  power  of  the  Crown  to  prevent,  repress, 
or  repel  aggressive  acts  of  the  (Confederates  in  violation  of  her  liospi- 
tality,  or  in  the  derogation  of  her  sovereignty.  Nay,  more,  the  (lovern- 
I  ment  of  Portugal,  tinding  its  own  naval  foice  inade(pnite  to  pre\ent  the 
'   Confederates  trom  abusinii-  the  ri-iht  of  i»svlum  in  tlie  W't  stern  Islands. 


as 


it  ion  •loi'-'* 
to  lifi'ully 

like  eir- 
present 
a  British 
criminal 
>n  of  the 

sh  minis- 
l  upon,  it' 
uch  Oov- 
e  known 
done  in 
indeed,  of 
fy  of  pur- 
might  not 

anning  of 
le  conduct, 
atter. 

'A  apply,  i" 
egulations 

the  minis- 
pnce  to  the 
[cit  in      "? 
to  (         ^'^ 
to 

actioti  by 
municipal 

xintries  ol 

d  political 

ity,  shows 

ted  iStates, 

concise  and 
ishment  on 
;rary  to  the 


st  stringent 

die." 

r,  and  witli 
tory  of  the 


istcilleri,  /-«'f;i< 


expressly  authorized  the  American  (loNerniiH'ut  to  semi  a  naval  fon-e 
therefor  the  pnri>ose  of  defending  the  sovereignty  ami  exe<-uting  the 
law  of  Portuiiiil.'^ 


'  Vattel,  Droit  dv  gois,  oil.  Praditir-l'odi'it'',  tonio  ii,  p.  4r>  I.  note. 
'*  Dociinients  iumt'xiHl  to  tlic  AniLriciiii  Counter  ('asc,  p.  ltr>H. 
-  Ubi  siipiii.  i».  10  J I  el  xcq. 

*See  the  circnlar.s  issut'd  by  tin-  Uraziliiiu  (iovirmneiit.  in  siippliMncntary  <J(n:iiiiii'nt4 
.inuexed  to  tlit*  Aineiieau  Ca's.-,  vol.  vii,  p.  K)7  rt  wc/. 
"  American  ('ase,  p,  4(m. 
See  (locunieuts  annexed  to  tlif  Aniijrii'.an  ConntHr  L'asi-,  p.  l')l:?  I'l  ifq. 


i  ■ 


36 


ARGUMENT    OF    THE    UNITED   STATES. 


(e)  In  Sp.aiii,  the  "  Codigo  Penal,''  wliile  repeating  tlie  general  provision^ 
of  the  French  "Code  Penal,"'  adds  the  following  important 
*■"""  specific  enactment  to  ptinish  '•  any  person  who  without  le- 

gitimate authorization  shall  levy  troops  in  the  kingdom  for  the  service 
of  any  fore',!;n  ])ower,  or  shall  expedite  cruisers,  whatever  may  be  the 
object  proiMsed,  or  the  nation  against  which  it  is  intended  to  commit 
ho'stilit'ies." ' 

But  Spain  never  pretended  that  she  had  any  right  to  plead  these  pro- 
visions of  her  penal  code  as  excuse  for  omitting  to  act  preventively  by 
executive  power  to  repress  misconduct  on  the  part  of  the  Confederates.^ 

(/)  In  regard  to  the  governments  of  Brazil,  I'ortugal,  and  Spain,^  it 
deserves  to  be  remarked  that  their  respective  juridical  commentators 
fully  explain  the  theory  of  their  yenal  codes  as  being  chiefly  valuable  to 
aid  in  the  preservation  of  the  national  peace.  They  rightfully  maintain 
that  neither  tiie  enlistment  of  troops  in  a  country  for  foreign  service,. 
Dor  the  e(piipment  of  ships  of  war  in  their  ports  for  such  service,  would 
of  themselves,  and  of  necessity,  involve  any  disturbance  of  the  domestic 
peace.  Such  acts  are  not  prohibitetl  as  being  immoral  or  criminal  per 
sc,  but  only  if  done  in  derogation  of  the  local  sovereignty  and  in  preju- 
dice of  the  rights  of  other  governnuMits.  That  is  to  say,  these  laws, 
although  not  bearing  the  title  of  '•  ^stutrality  Iiaws,^are  quite  as  clearly 
neutrality  laws  in  fact  as  the  foreign-enlistment  acts  of  the  Inited 
States  and  of  (Jreat  Britain." 

We  might  exten<l  these  remarks  to  the  iegislation  of  all  the  other 
maritime  states  of  Europe. 

I,,,.      (//)  The  penal  laws  of  Uelgium  and  the  Xetherlands,  in 
this  respect,  are  identical  with  those  of  France.^ 

(//)  The  provision  of  the  \nn\i\\  code  of  the  Netherlands  deserves  atten- 
tion because  of  the  very  pertinent  remarks  respecting  it  made  by  the 
>.'etherlands  minister,  Mr.  Van  Zuylen,  in  reply  to  the  in(]niries  of  the 
British  ch<ir(i<'  (('(((lainH,  Mv.  AVard. 

Air.  Van  Zuylen  writes  as  I'oUows: 

Tm:  H.\(;i  K,  March  (!,  1807. 

Jlr.  Waiil's  lutu-  i»f  the  Ititli  instant,  asl<ing  information  for  liis  <f()Yoiiini(>nt  al)ont 
tlu!  laws,  icijnlation.s,  and  otiu'r  means  tliat  tin-  Ni'tln-rlands  may  use  to  prevent  viola- 
tion «)i"ni'ntralily  within  her  borders,  has  been  received. 

In  reply,  the  undersijiin-d  informs  Mr.  Ward  that  there  is  no  eode  of  laws  or  rogiila- 
tions  in  the  Kinj^dom  of  th'^  >i(itherlatids,  eoneerninjj  the  ri;^hts  and  dnties  of  ncMitral.s, 
nor  any  speeial  laws  or  or  linanei's  for  either  party,  en  this  very  inipoitant  liiatter  of 
external  public  law.  The  jjovernment  may  use;  articles  .-^1  and  S.')  of  the  penal  code  : 
but  no  legislative  jirovisinns  have  been  adopted  to  protect  the  ;^o^'i'rnmeiit,  and  stM've 
a<;ainst  those  who  attiMopt  a  violation  of  neutrality. 

It  may  be  s.iid  that  no  country  lias  eodilied  these  rejfulations  and  <:;iven  them  the 
force  of  law;  and  thou;;h  (Jreat  Hritain  and  the  I'liiled  States  have  their  forei{.Mi- 
cnlistment  act,  its  etieet  is  very  limiteil.  '1  ne  Netherhinds  ;(overnment  has  not  yet 
thon<;ht  ])roper  to  collect  the  rejiulat ions  in  relation  to  the  ri<;hts  and  duties  of  neu- 
tr.'ility;  but  has  always  M'rujHilonsIy  obscrxid  tiie  jtrineiples  (d"  the  European  law  of 
nations,  and  lias  i>nblislied  notices  (as  Great  Ibitain  and  Francedid  in  1"^1>1)  to  Nethcr- 
land  Rulijeets  not  to  carry  dispatches  or  articles  contraband  of  war,  nor  to  break  an 
t'tl'ective  idoekade,  nor  to  en>>a>;e  in  j>rivatceiiu!j;,  nor  accept  letters  of  mar(iue. 

The  admission  of  bellijjereiit  bhips  of  war  into  our  |iorrs  was  re<xulated  in  the  same 
munner,  ami  tliesjieeial  iiistnictiims  sent  ti)  our  colonial  fioveinors,  duriny;  the  civil 
war  in  the  '/uitcd  Stat<!s,  were  conimuiiicatc^d  to  the  Mritisli  le;;ati<m  on  tln^  ITth  De- 
cember, l~t)l. 


Hi'Ipiuin  1 
aiiit 


H 


'  Documents,  iil  .s/(/»/y<,  p.  lO'l  d  vrr/. 

'I  hi  Kupra,  p.  lOT"^  el  (^y/.  See  also  the  hller  of  the  Spanish  miuiijter,  M.  Kibeiro,  to 
Sir  A,  Paj;et,  Aiiier.  App.,  vol.  iv.  p.  Utr*. 

^SecSilvii  Ferrao,  Tlnoria  <h  iJinilo  I'aiul,  vol.  iv,  ]>p.  181,  'i'M  ;  and  I'acheeo,  Cod'njn 
Penal  Comordtido,  tome  ii.  pp.  Itl,  IKi,  in  Documents,  iihi  nui)ia,  pp.  ll.'SH,  I(i.V2. 

■•See  Nahrlaiitttirhr  WctlnuLu,  cl.  I'r'tirt,  p.  (177,  lot  tht-  law  of  tlie  Netherlands. 


jVIISCELLANEOrS    COXSIDERATIONS. 


37 


ifir  ioifit.Mi- 
Ihius  not  yt't 
litu-rt  of  nen- 


ft(»  break  an 
Viiuo. 
ill  tlio  «a5)i« 


Tliofio  notices  woro  more  oxtonsivo  and  pioi  iso  last  year.  Tlio  };.)vt'iimu'iit  uuiler- 
iodk  to  pivvt^iit  the  tMiiiipiiieiit  of  war  vt'sscls  for  tlio  Ixlliiii'icuts  in  lier  i>orts.  A 
copy  of  tho  Oflic'ial  Gazette,  March  'Jtl,  Hiili,  contaiiiiiiy  those  notii'os,  is  hereto 
atiiiexi'il. 

Artieh's  81  and  ■*.">  of  the  penal  code  may  he  used  as  coercive  measures  to  prevent 
violations  of  neutrality.  For  example,  they  niijiht  serve  to  jtrosecute  those  atteinptinff 
to  e(|iiip  or  sell  vessels  of  war  in  onr  port  for  tho  heiielit  of  helUj^eients.  The  vessels 
CDiild  then  he  seized  on  evidence,  and  thtur  departure  he  thus  prevented.' 

Mr.  Yiiu  Ziiylen's  lanjjnage  is  iimccuiute.  lie  obviously  intended  to 
express  that  tlie  Netherlands  have  no  laws  known  by  the  unmc  of  laws 
of  neutrality,  or  codihed  as  such.  lie  .seems  not  to  have  thought  that 
mere  penal  ])rovisions  deserved  the  name,  although  he  refers  to  penal 
provisions,  whieh,  as  he  says,  are  ancillary,  in  that  .sense,  to  the  exer- 
ci.se  of  the  executive  power  of  the  government,  this  V,»'ing  the  proper, 
and  indeed  the  oidy  etfectual,  agency  for  the  prote.  tion  of  its  sover- 
eignty against  invasive  or  evasive  acts  on  the  part  of  belligerents. 

The  elliciency  with  which  executive  power  is  aj>i)lied  to  such  subjects 
in  the  Xetherlands  is  fully  manifested  by  the  pertinent  circulars  of  that 
govern  ment.' 

{/)  We  tind  similar  laws  existing  in  Ivussia;  in  Prussia,  which  had 
occasion  once  to  ai)[>ly  those  laws  to  the  acts  of  l>ritish  ^  «";■;'  "■'  >'ni» 
agents  in  I'russia;  in  J)enmark,  and  in  Sweden.'  >.i;.,i.m""''" 

(;■)  The  documents,  which  exhibit  the  legislation  and  ])olitical  action 
ofboninark  in  this  relation,  are  particularly  interesting,  because  they 
so  clearly  show  how  the  penal  or  punitive  laws  were  merely  and  simply 
sniiplenu-iital  to  the  preventive  action  of  the  (lovernmeut. 

0.  i  )n  review,  therefore,  of  the  legislation  and  political  action  of  Great 
lUitain,  as  compared  with  that  i>f  all  other  Ciovernments, 
we  arrive  at  the  lollowing  conclusions: 

((()  Tiie  institutions  of  Italy.  Urazil,  Switzerland,  France,  Spain,  Por- 
tugal, the  i'etherlands,  and  all  other  (Jovernments  of  Europe  indeed, 
except  (ire;  t  Ibitain,  ex[»re.s-sly  assume,  as  do  the  institutions  of  the 
United  States,  that  volunteer  and  unauthorized  military  and  Jiaval  expe- 
ditions, undertaken  in  a  n-  litral  country,  are  to  be  restrained,  because 
teiuling  to  involve  sucli  country  in  war  with  the  country  aggrieved. 
Infringements  of  the  lawaie  punished  mainly  for  that  reason,  including 
the  protection  of  the  national  sovei'eignty. 

{b)  Hence,  in  all  those  countries,  except  (Ireat  I'ritain,  the  punilMVC 
law  is  a  sec(uidar\"  iact ;  the  primary  fact  being  the  preventive  action 
of  the  Ciovernment. 

(')  The  I "nited  States  perfectly  uiulerstood  this,  the  true  relation  of 

thinjis,  and  whih'  they  indicted  persons  and  arreste<l  ships,  they  did 

not,  when  occasion  i-equired  action,  rely  on  such  merely  jmnitive,  or  at 

most  iuixiliary,  means,  l)ut  called  into  play  the  armed  forces  of  latid 

land  soa  to  sup[)ort  the  Executive  in  summary  acts    d"  prevention  by 

I  force  for  the  ntaiutetuince  not  only  of  tlie  sovereignty  but  of  the   neu- 

[trality  of  the  (Jovernment. 

I     ('/i  Neither  Lord  Kussell,  in  his  corresixindener  with  Mr.  Adam.^,  nor 
the  trainers  of  the  Uriii.sh  Case,  appear  to  have  had  any  clear  concep- 
tion of  these  higher  relations  of  the  subject,  altiiougli  distinctly  and 
lexpliritlv  stated  in  the  best  works  of  international  law  of  (Ireat  Britain 
ilicr.selir 

(' )  (ii'cat  nritiiin  alone  ))retends  that  punitiv*'  law  is  tluMneasure  jf 
houtral  duties:  all  other  (jjvernments,  including  the  United  States,  p..'e- 

'  Doeunients  annexed  to  tl.e  Aineriean  Case,  vol.  iv,  ]>.  l.')."i. 

•  l>oennieiits  annexed  to  the  Viiieriean  ("ounter  Case,  Supplement,  p.  -Mi. 

'Ibid,,  pi».  .")-4, ,-.:?,  .".I,  ly. 


sit 


f1 


38 


ARGUMENT    OF    THE    i:XITr:i)    STATES. 


vent  |ioiil  to  tlic  national  poaco  tliroi."^'  nioaiis  of  ]>roro;;ativo  force, 
lodfjed,  by  implied  or  t'xjjrcss  constitutiotial  law,  in  the  liaiuls  of  the 
Exociitivt'. 

VIH.  W«'  aic  HOW  iirc'parc'd  to  Jud^c  wliotlier,  in  the  incidents  of  the 
present  controversy,  the  conduct  of  other  p^oveiiinients  was, 
ton.  ,>...rL..  _^^  ^j^^^  r.ritish  .ii'overnnient  pretends  in  answ«'r  to  the  recla- 

mations of  the  United  States,  the  same  as  that  of  (Ireat  IJritain,  and 
Avhether  (lieat  lUitaih  did  all  which  they  did  in  tlischar^'e  of  interna- 
tional ohliiiiitions  toward  the  United  States. 

It  is  obvious  to  see  that,  upon  her  premises  of  political  action,  it  was 
impossible  that  (Ireat  llritain  should  dischaij^c  those  duties  as  they 
were  discharged  by  other  <>'overnments. 

In  ]»oinr  of  fact  she  did  not. 

{(()  Oti  er  governments  not  only  i)revented  the  arman\<nr  of  ciuisers, 
but  also  forbade  tluMr  construction.  I'or  e\am[)le,  I'l'ance.  the  Nether- 
lands, Denmark. 

{!>)  Other  ♦,^ovcrnjne)its  imposed  Just  limits  on  asylum,  and  punished 
its  abuse.     For  exantple.  I'.ra/.il,  France,  Si)ain,  I'ortuya!. 

(c)  Xo  other  n'overnmcnt  allowed  armed  cruisers  to  sail  fiom  her  ports 
to  prey  on  the  commerce  of  the  United  States.  She  alone  furnished  th" 
Alabamas  and  the  Flori(l((s\  which,  by  the  capture  of  our  merchantmen, 
gave  to  the  I'nited  States  cause  of  national  reclamation. 

{(1)  In  no  other  government  was  the  wrong  committed  of  allowing  it- 
self, as  Lord  Jfussell  une((uivocally  adnnts,  to  l)e  subjected  to  the  shame 
of  being  the  established  seat  of  the  military  ;:nd  naval  supi>lies  of  the 
Confederates. 

IX.  Both  in  the  Case  and  Counter  Case  of  th3  IJritish  government 
•  Th.!,..r„>,t  i.o  there  is  elaborate  arraignment  of  the  government  of  the 
ImmIuhi  a'liaV-'or.i.i;  Unit<'d  States,  in  res]ieet  to  the  manner  in  which,  at  various 
"""''"'""""^'  periods  of  their  public  history,  they  have  discharged  their 
neutral  obligations  toward  other  governments. 

We  dispute  the  right  of  the  liritish  government  to  discuss  any  such 

:,  r.i..u....v  ,1.   uiatter  before  this  Tribunal.    (Jreat  Britain  is  here  accused, 

'  not  only  of  violation  of  neutrality,  but  of  permitting  or 

suffering  the  active  complicity  of  her  subjects  with  the  rebels  of 
the  United  States.  It  is  no  answer  o  this  ch;irge  to  say  that,  at 
some  time  past,  the  American  (Jovernnient  was,  or  may  have  been,  de- 
linquent toward  some  other  governmeni.  Such  an  answer  is  not  com- 
patible with  reasi>n  or  justice,  but  iscontraiy  to  both.  Nothing  is,  or  can 
be,  on  trial  before  this  tribunal,  but  the  conduct  of  (Ireat  Britain.  Tiiat, 
.and  that  alone,  is  submitted  by  the  treaty  of  Washington.  To  summon 
the  United  States  to  enter  into  discussion  of  its  acts  toward  other  gov- 
ernments, which  is  in  effect  now  done  by  tin'  British  (Jovernnient,  is  to 
call  on  the  Tribunal  to  i)ass  JndgnuMit  on  imputed  acts  of  the  United 
States  which  are  wholly  outside  of  the  questions  to  be  sidunitted  by  tii<> 
two  goveiiiments,  according  to  tiie  tenor  of  the  Treaty. 

The  British  Case  and  ('ounter  Case,  it  is  true,  introduce  these  matters 
professedly  as  bearing  on  the  iiupiiry  of  what  is  due  diligence,  by  ex- 
amination of  what  has  been  the  conduct  of  the  Uidted  States  undci 
circumstances  of  alleged  sinularity  to  those  involved  in  the  ])reseiii 
controversy.  But  these  matters  are  not  tln^  less  discuss  d  by  the  British 
Ciovernment  in  the  maimer  and  s]»irit  of  counter  accusation.  And,  even 
as  to  the  sjiecilic  ii'lation  in  which  the  subjec^t  is  profess«'dly  introduce*! 
by  the  British  (loveininenl,  it  is  not  the  less  utterly  irrelevant,  valueless 
as  argument,  and  incapable  in  any  respect  of  instructing  the  conseienci 
of  this  Tribunal. 


nieti 


I 


MIsCHLLAXHors    CON'SIUKIiATlOXS. 


MD 


le   force, 
Is  of  tl»(^ 

its  of  tho. 
cuts  was, 
till'  rccla- 
tain,  and 
intcnia- 

)n,  it  was 
as   tlicy 


;■  cruisois, 
('  Notlicr- 

puiiislietl 

luM-  ports 
lislu'd  til" 
'liantmen, 

lo^Yin<^  it- 
tlie  slianie 
ios  of  tlio 

Dvern  incut 
out  of  tlio. 
at  various 
rfjocl  their 

auy  such 
e  accused, 
mitting  or 
rebels   of 
y  that,   at 
been,  tle- 
uot  COUJ- 
<;  is,  or  can 
■  11.    That, 
o  summon 
other  gov- 
iicnt,  is  to 
he  ruiteil 
ted  by  tho 

■se  matters 
ice,  by  cx- 
ites  under 
le  ])reseiit 
thcHritish 
An«l,  even 
introduced 
,  valueless 
conscience 


The  two  {governments  have  su'omitted  tlie  (|nestion  of  tlie  conduct  of 
Great  Ibitain  at  a  precise  i)eriod  of  time  and  in  a  specific  relation,  that 
of  tlie  late  domestic  rebellion  in  the  United  States.  That  is  thedclinite 
subject  to  bo  investigated  and  jud<j;ed  by  the  Tribunal,  upon  the  proofs 
presented  by  the  two  <;overnments.  As  i!ici<h'iital  to  this  i)articular 
subject,  is  the  Tribunal  to  take  uf)  and  examine  twenty  other  controver- 
sies, each  wholly  iiulependent  of  that  and  of  one  anotlier,  and  to  deter- 
mine ficriatiin  each  one  of  them,  in  order  to  know  how  to  determine  th«'. 
Itarticular  controversy  submitted  by  the  'Ireaty .'  That  would  b<',  pre- 
posterous as  reason,  and  impossible  to  be  done,  as  act. 

The  counsel  of  the  United  States  must  refuse  to  consent  to  have 
drawn  in  j"udj:;ment  here  the  jnist  or  present  rela;ions  of  their  j;overn- 
ment  to  France,  Sjiain,  I'ortu.ual,  ^Icxico,  or  even  Great  Ibitain  lierself. 

^'evertlleless,  bein.u'  thus  challen;4ed  by  the  15ritish  (lo\'ernment,  we 
presume  to  say  that  the  histoiy  of  the  foreign  relations  of  the  United 
►States,  in  this  respect,  if  it  have  any  ])ertineney  to  the  present  contro- 
versy, has  such  i)ertinency  to  the  eti'cft  of  confirming  tlu;  theories  of 
]nd»lic  law  on  which  the  i)ie.sent  reclamations  of  the  United  States  hero 
stand,  as  maintained  in  this  Argument. 

The  Tribunal  cannot  fail  to  observe,  in  the  first  plaee,  that  while 
(Ireat  Britain  constantly  asserts  that  her  duties  of  ncutralitv  are  de- 
lined  by  an  act  of  I'arliament,  and  that  her  government  has  no  means 
or  power  to  maintain  neutrality,  except  by  the  agencies  of  an  act  of  i'ar- 
liamcnt,  yet  during  her  entire  natioiud  life,  for  a  jieriod  of  nearly  eight 
humlred  years,  she  did  not  possess  any  such  act  of  I'arliament,  and,  of 
course,  during  all  that  period  she  neither  could  nor  did  discharge  her 
duties  of  neutrality  towards  other  governments.  It  would  be  an  un- 
welcome task  to  the  counsel  of  the  United  States,  as  they  well  might, 
to  pvocecd  to  imitate  the  Ihitish  case,  and  recount  all  the  occasions, 
even  in  more  modern  times,  in  which  it  might  be  charged  that  by  acts 
of  aggressive  intervention,  by  sea  and  by  land,  (Jreat  IJritain  has  man- 
ifested her  slight  consideration  of  the  proi)er  rights  of  the  other  states 
of  Eurojie,  more  es[)ecially  in  the  class  of  maritime  (jiicstions,  ;ind  of 
domestic  disturbances  existing  in  other  states  Arc  not  the  works  of 
jurisprudence  of  all  nations  full  of  inculpations  'icse  acts  on  the  part 
of  (Jreat  Jlritain  I  Has  not  every  maritime  stah  >i'  I'.uropc.  one  after 
the  other,  been  forced  in  self-defense,  in  these  relations,  into  war  with 
Great  IWitain  V 

And  yet  it  would  be  much  more  i»ertinent  to  the  i)rescnt  iss;.r  ihns  to 
.scnitini/.e  the  political  conduct  of  (Ircat  Ibitain  with  reference  to  other 
governments,  than  it  is  to  scrntini/.e  that  of  the  United  States. 

Now,  then,  while,  until  the  year  ISl!),  Great  Ibitain  had  no  iiiunicii»al 
law  for  the  preservation  of  neutrality,  and  while  slic^  steadily  disav.'  vs 
the  i)os.sihility  of  using  any  other  means,  thi'  United  States,  on  the  con- 
trary, almost  at  the  very  nn)nient  of  entering  into  the  family  of  nations, 
asserted,  and  have  continued  to  assert,  the  right  and  the  duty  of  every 
goverimiciit  to  act  as  such  politically,  and  by  cxi'rcise  of  supreme  ex 
eciuivc  foicc  to  watch  over,  guard,  and  maintain  its  neutrality  between 
contending  belligerents.  While  lOngland  professes,  as  her  view  of  pub- 
^  lie  law,  that  constitutional  governments  must  of  necessity  a.llow  them- 
selves to  <liift  continually  into  war  by  reason  of  lia\  iiig  no  other  means 
to  keep  i)eace  except  aJi  act  of  Parliament,  and  that  confessedly  insuf- 
ficient,— the  United  States,  on  the  other  hand,  have  as  constantly  main- 
tained, and  do  now  maintain,  that  it  is  the  dutv  of  all  iiovernments,  in- 


1^ 
I-- 


I'h 


i^i'o  C;mvUy,  itbi  Hiipra;  Lncvhas'i  WxWi,  Droit  I'ublic  et  .l/dcifoHt',  p.  55,  e/  8f«/.;  Cussy, 

u.-vn,  etc.,  i>it't". 


40 


ARGUMENT    OF    THE    UNITED    STATES. 


cliulinjj  esperially  v^onstitutional  governments,  to  discharge  tlieir  neu- 
tral duties  in  obedience  to  rules  of  right,  independent  of  and  superior 
to  all  possible  acts  of  Parliament.  In  consonance  with  which  doctrine 
it  is  that  every  President  of  the  United  States,  from  President  Wash- 
ington to  Presi<lent  Grant,  inclusive,  has  never  failed  to  apply  due  dili- 
gence, voluntarily,  sponte  sua, — in  the  vigilant  discharge  of  his  own 
official  duty,  not  in  mere  complaisance  to  foreign  suggestion, — by  him- 
self or  by  other  oliicers  of  the  Government,  to  prevent  all  unlawful 
enterprises  of  recruitment  or  equipment  in  the  United  States. 

In  proof  of  these  assertions,  we  proceed  brietly  to  touch  on  such  in- 
cidents of  the  past  history  of  the  United  States  as  are  (however  illegiti- 
mately) brought  into  question  here  by  the  British  Case  and  Counter 
Case. 

(o)    In  regard  to  our  first  controversy  wi.^i  Great  Britain  in  this 
Neuini.ty  t..»,r,i  res))ect,  in  the  time  of  President  \yashington,  we  need  do 
vl^li'law^hm'  nothing  more    than  cite  testimony  of  Englishmen  them- 
t.iu-,:.,im:n„ir:.t,un.  j^t^iy^.s^  fo  tlic  liouor  autl  good  faith  of  the  American  Gov- 
ernment. 

In  the  tirst  place,  Lord  Tenterdcn.  in  the  documents  appended  to  the 
P)ritish  Case,  admits  the  good  faith  and  the  efficiency  of  President 
Washington. 

Secondly,  Mr.  Canning,  certaii'ly  one  of  the  greatest  min;;-.ici 
Great  Britain,  on  occasion  of  opi)osing  the  repeal  of  the  British  foreign- 
enlistment  act,  said : 

"If  I  wished,"  Mr,  (.'anning  saiil,  ''for  a  guide  in  a  system  of  neu- 
trality, 1  should  take  that  laid  down  by  America  in  the  days  of  the 
presidency  of  Washington  and  the  secretaryship  of  J' lierson.  In  1793 
complaints  were  made  to  tlie  American  Government  that  French  ships 
were  allowed  to  lit  out  and  arm  in  American  ports  for  the  i)urpose  of 
attacking  British  vessels,  in  direct  opposition  to  the  laws  of  neutrality. 
Immediately  upon  this  representation,  the  American  Government  held 
that  such  a  fitting  out  was  contrary  to  the  laws  of  neutrality;  and 
orders  were  issueil  i)rohibiting  tlie  arming  of  any  French  vessels  in 
American  ports.  At  Xew  York  a  French  vessel,  fitting  out,  w'as  seized, 
delivered  over  to  the  tribunal,  an<l  condemned.  Upon  tliat  occasion 
the  American  Government  held  tliat  such  tttting  out  of  French  ships 
in  American  ])orts,  i'cr  the  purpose  of  cruising  against  ICnglish  vessels, 
was  incomj)atible  with  the  sovereignty  oftiie  United  States,  and  tended 
to  interrupt  tlie  jieace  and  good  understanding  which  subsisted  between, 
that  country  an<l  Great  Britain.' 

"  Here,  sir,  (he  added,)  I  <;onten(l  is  the  principle  ui)on  which  we  ought 
to  act."  - 

Finally,  in  the  midst  of  the  occurrence^  now  in  controversy  between 
the  two  governments,  Sir  Bouudcll  Palm<  r  spoke  as  follows  in  the 
IJouse  of  Commons: 

"As  loii;^  iiLjo  as  IT'.t:!,  wi'  ciiipliiilii'iiUs  iiisi.sUMl  thut  the  American  (JDViTiiinont 
mIidiiIiI  iii>»  Mi|i|i!y  l^'raiii't',  with  wliinii  we  were  llieii  eii^a^^ed  in  liostilities,  with  voH.sols 
ol'  war.  We  required  tliein  l«i  tlelain  tliose  vessels,  ami  Wasliiii.iitoii  did  detain  tlioin, 
before  , any  r<)rei;;n-enlistnient.  act  was  jiassed.  Wasliinj^ton  not  only  di^tainod  tlio  ves- 
sels at  onr  instance,  liut  ho  ])ro]>osed  and  carried  in  Coiijj;ress  the  American  forelgii- 
enlistinent  act,  as  his  eneniii's  tin  n  saul,  at  our  dictation.  Precisely  the  sanio  attacks 
which  are  now  directed  a^^ainst  Her  Majesty's  G(»verninent  in  this  lloust;  wore  then 
directed  against  AVashiii^fton  in  Con<;ri'ss.  There  were  nieml)ei  ot"  ('onjjrc^ss  whouaid 
that  be  was  tnickliiifj  to  Enj^land  ami  allow  in;r  the  Enj^lish  omhassador  to  dictate  tt) 


'  Aitptiidix  to  Iiriti>h  Case,  vol.  iii.  Supplement,  p.  '22. 

•Hansard's  I'arliainciitary   l)el)atcs,  N.  8.,  vol.   viii,  p.   li)li>.    Canniiiy'rt  SpocchcH, 
vol.  v,  i>.  .'•!>. 


MISCELLANEOUS    CONSIDERATIONS. 


41 


iir  ueu- 
iperior 
octrine 
Wash- 
ue  dili- 
jis  own 
)y  him- 
[ilawt'iil 

iuch  in- 

;;Ouiiter 

ill  this 
need  do 
I  tlieui- 
LIU  Gov- 

il  to  the 
resident 

foreign- 

of  neu- 
s  of  the 
In  1793 
eh  ships 
I'pose  of 
itrality. 
ijnt  held 
and 

ssels  in 
seized, 
jceasion 
ch  ships 

vessels, 
tended 

)etween 

,'e  ouuiht 


t.v 


hi'tween 

^  ill  the 

,■■ 

veniniont. 

■'t 

> 

til  VtlHSOltJ 

aiii  thoin, 

cl  tlio  vos- 

n  forcisii- 

—< 

10  attacks 

wcro  tlion 

■i 

■(  w  lit)  said 

.  * 

»lictato  to 

s 

a 

Km.h.1,1 

r  111)1.1. 


1)11   ii    Ml 


SptH'cllCK, 


liim  ;  they  laniPiitcd  tlio  iiuniiliatioii  of  their  country  and  declaiod  that  the  uttivs  an  ^ 
atripes  ha<l  hcen  dra<^<ied  in  the  dust.  But  that  <j;n!at  man  despised  the  iinputation  of 
cowardice;  he  was  stronj;  enonj^h  not  to  fear  to  he  tlioiij^ht  afraid,  and  in  spite  of 
flanior — for  there  will  always  be  violent  and  excitahle  men  in  all  popular  asHeinl)lica, — 
Washiii}iton  pursued  the  course  which  he  knew  t.>  be  just,  anil  at  the  same  time  best 
calculated  for  the  intensst  and  welfare  of  his  own  country.  He  passed  the  foreign- 
ciilistment  act,  and  a  treaty  was  suhsiMiuently  entered  into,  stii>ulatiiifj;,  among  other 
tliiu<;s,  tor  the  restoration  of  i'r':.t!s  captured  by  vessels  that  were  lifted  out  in  American 
ports."' 

The  counsel  of  the  United  State.s  are  for  themselves  content  with 
their  own  convictions  on  this  point,  bnt  they  conceive  that  the  testi- 
mony of  Mr.  Canning',  Bir  Itonndell  rainier,  and  Lord  Tenterden  may 
litly  serve  to  satisfy  tliis  hijjh  Trilmnal. 

(/»).  The  British  Case  impliedly  hlaraes  the  United  States 
on  ncconnt  of  the  v^xpedition  of  Miranda. 

J'laiicisco  Miranda,  born  in  the  Spanish-American  province  of  Vene- 
yiiola,  had  served  in  the  army  of  France  under  commission  of  the  Na- 
tional Convention,  but  was  suspended  from  command,  and  banished  for 
misconduct  at  the  battle  of  Nerwinde.^  lie  became  besotted  with  the 
idea  of  beiiis'  the  predestined  regenerator  of  his  native  country,  without 
other  capacity  or  resources  than  his  own  extravagant  self-conceit.  He 
by  some  means  made  himself  acceptable  to  ]Mr.  Pitt,  who  encouraged 
liiiu  ill  the  idea  of  getting  up  an  expedition  for  the  invasion  of  Vene- 
zuela.' 

Tolitical  considerations  standing  in  the  way  of  his  doing  thi'=  in  Eng- 
land, he  went  to  the  United  States,  thinking  to  find  there  a  convenient 
])oint  of  departure.  lint  1  resident  Adams  steadily  repelled  his  ad- 
vances, and  rendered  abortive  all  his  attempts  to  get  up  the  proposed 
exjiedition.*  Some  years  afterward,  still  favored  by  (Jreat  Britain,''  he 
again  appej  red  in  the  United  States  with  the  same  jiurposes. 

lie  had  much  of  the  plausibility,  and  all  the  impudence,  of  that  class 
.»f  cosmopolitan  exiles  and  adventurers.  By  the  exhibition  of  deceptive 
letters  written  by  himself  to  President  Jefterson  and  Secretary  Madison — 
letters,  on  their  face,  of  mere  courtesy — he  contrived  to  impose  on  credu- 
lous pcr.^ons  and  obtain  aid  in  Xew  York  ;  for  in  this  ca.se,  as  in  all  like 
cases,  fraud  and  falsehood  lie  at  the  bottom  of  such  unlawful  enter- 
pri.ses. 

Thus  he  was  enabled  to  organize  an  expedition  and  get  to  sea  with- 
out knowledge  of  the  tlovernment." 

On  the  way  to  Caracas  he  stojiped  at  the  English  islands  of  Barba- 
•loes  and  Trinidad,  where  he  was  treated  with  the  utmost  consideration 
by  the  British  otiicers,  civil  and  military,  and  wliero  he  received  from 
Admiral  Cochran,  in  command  of  the  JJritish  West  Indies,  a  written 
Contract  of  iUliance  and  copartnership  under  date  of  dune  !>,  ISOO,  by 
tlio  tenor  of  which  Great  IJritain  adojited  the  expedition  of  Miranda, 
and  riiriiislied  it  with  additional  supplies  and  ves.sels.' 

Tile  expedition  landed  at  Vela  de  Coro,  but  faiU'd  of  success  by  rea- 
son oitiic  deplora'ole  incapacity  of  Miranda;  and  he,  dishonored  by  the 
manifest  proofs  of  the  falsehood  by  which  he  had  imposed  upon  the 

'Hansard's  Debates,  vol.  dxxiii,  p.  9'm. 

-See  lIi.>itory  of  Don  Francisco  de  Miranda's  attempt  to  etlect  .i  nvolution  in  South 
America. 

'Sic  Autepitra's  Docmnents,  Historical  and  Explanatory,  j).  l".!. 

^Tlie  Works  of  ,rolin  Adams,  by  ('liarl(>s  I-'iJincis  Adams.  \ol.  i,  jia^cs  r>'>:j,  7,M;  vol. 
viii,  liases  ,^()SI,  r)Hl,  (iOi);  vol.  X,  p."  i:u. 

■■  Dodsiley  Annual  Kei>ister  for  H(I7. 

"  History  of  Miranda's  Expedilion.  as  .ibd 


f 


i 


1^^ 


'^  1 
If- 


'orv, 


See  this  extr 

.,  P.'ii: 


lordinary  coiitiact  in  Anii  ,    la's  Documents,  Historical  and  Exphm.v 


\t  -." 


..,,«..^^;«.^r^>«, 


42 


AKGUMENT    OF    TIIK    UNITED    STATES. 


.1 


adventiiiiii's,  IJriti.sh  and  AiiuMicaii,  enlisted  in  the  expedition,  disap- 
peared IVoin  public  sij;iit.  We  liiid  him  living-  some  time  afterward; 
but  we  do  not  find  that  he  ever  did  any  actual  service  to  the  patriots  of 
Spanish  America. 

Some  of  these  adventurers,  on  their  return  to  the  United  States,  were 
indicted  ;  but  the  jury  failed  to  convict,  ]>artly  in  consequence  of  inge- 
iMOUs  soi»histries  of  their  counsel,  ami  partly,  we  think,  by  reason  of 
the  notorious  participation  of  the  liritish  naval  authorities  in  the  West 
Indies.' 

We  submit  that  there  is  nothing;'  in  the  adventures  (>f  this  Miranda 
which  reflects  discredit  on  the  United  States  or  favors  the  ar<;ument  of 
the  JJritish  (Jovernment. 

Whatever  responsibility,  if  any.  devolved  on  the  United  States  in 
the  premises,  was  lon<;  a,i;o  amicably  settled  between  them  and  Spain. 

(c)  Next  +he   Ilritis',  ''asc  calls  attention  to  the  jj^eneral  conduct  of 

R.voit  oiHpn.i.h  the  United  ti   ites  in  reference  to  the  lonj^-continued  hos- 

A.n.Muan  ,ni„,;,».    tiiiti(>.^  bctwecu  Spalu  and  her  revolted  Colonies  in  America. 

We  confess  that  we  are  surprised  that  (Ireat  liritain  especially  should, 
in  this  relation,  question  the  acts  of  the  United  States. 

The  Americau  (Joveriiment  did  not  hasten  at  the  earliest  moment  of 
revolutionary  political  movement  in  those  C'olonies,  and  before  the  o(;- 
currence  of  any  siffnificant  military  event  whatever,  to  ac(!or<l  the 
status  of  belli<>erents  to  the  rebels  of  Spain,  as  Great  Ibitain  did  to 
those  of  the  United  States.  We  waited,  as  discretion  ami  .in>iice  re- 
quired we  should  do,  until  the  civil  war  in  Spanish  America  forced  itself 
upon  our  attention  by  incidents  in  our  own  i)orts  arising  out  of  captures 
on  the  sea,  as  to  which  action  became  requisite  on  the  part  either  of  the 
Executive  or  of  the  courts  of  the  United  States. 

When  that  civil  war  had  raged  for  years,  without  Spain  having  suc- 
ceeded in  reducing  her  rebel  subjects  to  submission,  we  still  abstained 
from  all  political  action  in  the  premises  to  the  prejudice  of  Spain,  until 
Ave  had  sent  informal  commissioners  to  Spanish  America  to  inquire  and 
make  report  concerning  the  condition  of  things  there.  Even  then, 
before  proceeding  to  definite  political  action,  we  deliberated  still,  and, 
not  without  concurrence  of  opinion  at  least  of  Great  liritain  in  this 
respect,  at  length  we  concluded  that  the  revolted  Colonies  had  reached 
such  a  condition  of  sure  actual  independence  as  to  be  fully  entitled  to 
be  recognized  as  independent  States. 

During  all  this  long  period,  the  United  States  steadily  labored  to  pre- 
vent the  equipment  of  vessels  in  their  ports  to  the  prejudice  of  Spain. 
The  successive  Uresidents  of  the  Uiuted  States  were  positive  in  instruc- 
tion to  all  subordinate  officers,  and  vigilant  in  observation,  to  enforce 
the  execution  of  the  laws  of  neutrality,  international  as  well  as  muni- 
cipal. Prosecutions  were  instituted  in  the  courts;  vessels  unlawfully 
captured  were  restored,  by  judicial  or  administrative  order;  and  the 
principals  of  neutrality  were  proclaimed  and  maintained  in  every  act, 
whether  of  the  courts  or  of  the  Executive. 

As  to  the  courts  of  the  United  States,  we  have  a  right  to  say  that 
their  decisions,  during  that  i)eriod,  on  this  class  of  questions,  are  now 
received  as  authoritative  expositions  of  public  law  not  less  in  Great 
IJritain,  and  in  other  parts  of  Europe,  than  in  the  United  States. 

As  to  the  deportment  of  the  Executive  in  the  course  of  these  occur- 
rences, we  confidently  appeal  to  themassof  official  acts  and  correspond- 
ence contained  in  the  documents  annexed  to  the  American  Counter  Case, 
to  prove  that  the  American  Government  not  only  did  everthing  which 

'  See  Trial  of  Smith  aiul  Oyden, 2)os».im. 


■^ 


i 


MISCELLA\EOUf<    CONSIDERATIONS. 


43 


liiw  it.,,uire(l,  but  did  every thiu}^  whidi  was  Immanly  possible,  by  pre- 
vetitivo  vifjdiuico,  avS  Avell  as  by  punitive  prosocntiou,  to  discliarge  the 
neutral  oblij;atioiis  of  the  United  States. 

Did  the  Anierlean  Clovernnient,  at  any  time,  or  on  any  occasion, 
either  willlully  or  with  culpabh^  ne<i,li;uenee,  fail  to  discharf^^e  those  obli- 
{^atioiis  '.  W'i  deny  it ;  althoui:;h,  in  the  midst  of  almost  continual  war- 
fare, both  in  iCuropc  and  Americia,  it  is  possible  that  violations  of  liiw 
may  have  occurred,  in  sjute  of  all  preventive  efforts  of  that  CJovernment. 

What  then  ;'  If  wo  did  injury  to  Spain  we  repaired  that  injury.  Tl<e 
treaty  of  amity,  settlement,  and  limits  between  the  United  States  anl 
Spain,  of  February  22,  ISIU.  disposed  of  all  this  subject  by  mutual  con- 
cessions, renunciations,  or  indemiiirtcations,  in  t!u'  followiii};'  article, 
namely  : 

Auric!.!-;  ]\.  Tlic  two  lii.uli  (•f)iiti'actiii<i:  iifiitiivs,  aiiiniiitcil  willi  tlic  tiuist  fariicst  ilc- 
Kiic  ol"  coiiciliiitidii,  itiid  witli  tlic  i)l>jcet  of  lUiUiii;;  an  t'lid  to  all  tlu'  dilli'MMicos  Nvlii<li 

tl  uiHlcrstuiuliii;^'    wliicli  they 
til  claims  for 


luivo  t'xistt'il   lii-twi'di   t    ('III  and  of  coiillrininif  tiw, 

wish   to  lii^   forcviT  maintained   ln'twi'cn  tliciii 

(lantiij;<'s  of  itijnrics  which  they  tht'in.sclvcs.  as  well  as  thcif  respect ivc  citizi'iis  anil 

stilijects,  may  have  sttii'eted  tititi!  \ho.  time  ol'  sij^tiitti;  this  tfcaty. 

'i'lte  it'iitinciatioti  of  tite  llititcil  States  will  e\t(;iiil  to  all  the  itijttiies  menl'oiicd  in 
the  conveiititin  ot'  the  lltlt  of  Aiij;tist,  l^d'i. 

U.  To  all  claims  on  accottnt  of  prizes  itiiide  liv  I'rench  ]iiivateer> 
French  cottsnls,  within  the  territory  und.jtirisdictloti  of  Spain. 

;5.  To  all  churns  of  indemnities  on  iiceoiuit  of  tho  siispLtision  of  the  ri_i;lit  of  deposit 


ciprocally  retioiince 


iitd  conileiiiitet 


I  1. 


^rnnteiit   of  Spain, 


iitNew  Oileaith,  in  lH(i-i. 

4.  To  all  claims  of  citizens  of  the  United  States  npon  lin 
arisinjf  frmti  the  unlaw I'til  sei/.nies  ;it  sea,  itinl  in  the  ports  iind  lenitoiies  of  Sjiain  or 
tilt)  Spanish  coltmies. 

Tl.  To  all  cliiims  of  citizens  of  the  Tnited  States  npon  the  Spanish  fJovcrnment, 
stiitemiMits  of  whitdi,  soliciting  the  interposition  of  the  (iovernment  of  the  I'nitctl 
States,  Inive  been  presenteil  to  the  Dt'itiii  tment  of  State,  or  to  the  minister  of  the, 
IFintcd  States  in  Si>ain,  since  the  tlate  ol'  the  convention  of  1S(I:>,  ami  until  the  signa- 
ture of  this  treaty, 
j  The  renunciation  of  His  Catholic  Majesty  txtenils  — 

1.  'J'o  all  the  injuries  mentioned  in  »'ie  convention  of  the  11th  of  Au;ftist,  1SU2. 

2.  To  tho  stims  which  His  Catholic  Majestj  advanceil  for  tlni  return  of  Cafdain  Pike 
frt)ni  the  Frovincias  Internas. 

3.  To  all  injuries  caused  by  the  expedition  of  Miranila,  that  was  ftttcd  out  and 
eqiiijtped  at  New  York 

4.  To  all  claims  of  Spanish  subjects  uiion  i!<e  (lovernnient  of  the  Unitt>d  Stivtes 
uri.siiij^  i'rom  uidiiwfiil  seizures  at  sea,  or  within  the  [lorts  and  territiuial  jtirisdiction 
of  the  United  States. 

Tl.  Finally,  to  all  tho  claims  of  stibjects  of  His  Catholic  Majesty  upon  the  (lovern- 
meiit  t)f  the  Uniteil  States,  in  which  the  iuterpt)sition  of  His  Catholic  Majesty's  Gov- 
ernniciifc  has  been  soliciteil  before  the  diite  of  this  treat,'  ,  and  since  the  date  of  thti 
convention  of  It^O'i,  or  whit'h  may  have  been  niaile  ttt  the  tlepartment  of  foreign  alVaira 
«t'  Lis  Majesty,  or  ti>  his  minister  in  the  I'niteil  Sttitcs.' 

This  hi}ih  Tribunal  perceives  that,  in  view  of  this  treaty,  it  is  vain  for 
the  Uritish  Case  to  attem|)t  to  revive  controversy  on  the  subject.  l»oth 
Si»aiii  and  the  United  States  had  mutual  causes  of  reclamation,  which 
both  {governments  frankly  settled  and  ttirmimited  by  amictible  conven- 
tion, to  their  mutual  satisfa;*tion,  and  on  conditions  which  cannot  be 
♦juestioiied  by  any  other  <:;overn men t. 

One  thinji:  nu)re  in  this  ndation.  We  respectfully  reipiest  the  Tri- 
bunal to  observe  that  neither  Spain  nor  the  United  States  supposed 
that  damages  or  injuries  done  by  one  •government  to  another  were  mere 
indirect  damages  or  injuries,  and  so  not  com|)reheiuled  in  tho  terms  of  a 
treaty,  exj)ressly  i)rofessing  to  dispose  of  "  till  claims,"  "  all  questions,"' 
und  "  all  dilfercnces." 


The  United  States  Statutes  at  Large,  vol.  viii,  p.  ^.'iS. 


44 


ARGUMENT    OF    THE    UNITED    STATES. 


tU»till  .'ll]<l     til 

OniMitiil. 


.■ri  l'..r- 
ItHii.la 


"W.iikfr'd 
tiuii. 


Sl)aiti  and  the  United  States  by  this  treaty  "  reciprocally  renonnced 
all  claims  for  damages  or  injuries  which  they  themselves,  as  iccll  as  their 
respective  citizens  and  subjects,  may  have  sutl'ered."  They  rightly  sup- 
jiosed  that  a  blow  struck  by  one  government  .at  anotlier  is  a  direct 
wrong,  sounding  in  direct  damages,  and  calling  for  direct  compensation, 
quite  as  much  at  least  as  a  blow  struck  by  one  government  at  individual 
subjects  of  another  government. 

(rf)  The  British  Case  also  calls  in  question  the  conduct  of  the  United 
States  in  reference  to  the  war  'k)etween  Portugal  and  the 
Banda  Oriental.  This  matter  is  thoroughly  and  exhaust- 
ively discussed  in  the  correspondence  appended  to  the 
American  Case.  It  also  receives  satisfactory  exposition  in  the  Case 
itself. 

We,  therefore,  content  ourselves  here  with  reference  to  the  volumin- 
ous documents  annexed  to  the  American  Counter  Case,  which  manifest 
the  unceasing  ettbrts  of  the  American  Government  to  prevent  its  citi- 
zens from  taking  part  in  that  war,  or  doing  any  acts  prejudicial  to  the 
Portuguese  Government. 

{e)  The  British  Case  makes  reference  to  the  acts  of  William  Walker, 
and  other  adventurers  of  that  sort,  who,  at  a  certain  period, 
embarked  in  expeditions  of  adventure  to  Central  America. 

The  United  States,  in  extenuation  of  the  fact  that  some  expeditious 
of  this  class  escaped  the  vigilance  of  the  American  Government,  do  not 
plead  either  th«  extent  of  the  coasts  of  the  United  States,  and  conse- 
quent ditliculty  of  surveillance,  nor  the  disturbed  state  of  the  countries 
which  were  the  objects  of  such  expeditions,  as  we  might  do,  but  we  pass 
over  all  that  class  of  considerations  to  say  that  the  American  Govern- 
ment, in  these  occurrences,  exerted  all  its  power,  legal  and  political,  to 
prevent,  repress,  and  punish  everything  contrary  to  its  duties  of  neu- 
trality or  its  rights  as  a  sovereign. 

The  successive  Presidents  of  the  United  States  acted  elliciently  in 
the  premises  by  proclamations  to  all  citizens  generally,  and  by  instruc- 
tions and  orders  to  ollicers,  civil  and  military;  and  the  Attorney-Gen- 
eral of  the  United  States  directed  the  prosecution  and  secured  the 
conviction  of  leading  ottenders;  and  the  naval  ofiicers  of  the  United 
States  even  proceeded  to  break  up  such  enterprises  by  military  interpo- 
sition either  on  the  high  seas,  or  in  the  ports  of  Central  America,  in 
action  not  unlike  that  of  the  JJritish  Government  in  the  atfair  of  Terceira. 

We  entreat  the  members  of  the  Tribunal  to  peruse  the  documents,  in 
this  relation,  contained  in  the  appendix  to  the  American  Counter  Case, 
to  which  w'e  confidently  point  as  furnishing  complete  vindication  of  the 
United  States  in  the  preuiises. 

(/)  We  make  the  same  observation  as  to  the  alh^ged  .absence  of  due 
comportment  on  the  i)art  of  tlie  United  States,  either  at  the 
present  time  or  heretofore,  in  reference  to  the  Spanish  pos- 
sessions in  Cuba.     The  documents  annexed  to  the  Counter  Case,  we  con- 
fidently believe,  will  satisfy  this  Tribuiud  of  the  rightfulness  of  the 
conduct  of  the  United  States  in  this  behalf. 

Here,  also,  we  call  attention  to  signal  proofs  of  the  upright  spirit  and 
just  action  of  the  United  States  with  reference  to  the  rebels  of  Spain, 
in  contrast  with  the  temper  and  action  of  Great  Britain  with  reference 
to  the  rebels  of  the  United  States. 

In  the  first  place,  the  President  of  the  United  States  did  not  jump  to 
make  recognitiou  of  the  belligerence  of  the  Cubans,  upon  the  first  ru- 
mor of  a  gun  having  been  fired  by  or  against  them  ;  and  to  this  day  he 


MISCELLANEOUS  CONSIDERATIONS. 


45 


mnced 
:s  their 
y  sup- 
direct 
sation, 
vidual 

United 
ml  the 
icUaust- 
to  the 
e  Case 

)lurain- 

lanit'est 

ts  citi- 

to  the 

Yalker, 
period, 
jnerica. 
editious 
;,  do  not 
I  consc- 
luutries 
we  pass 
Grovern- 
tical,  to 
lof  ueu- 

ntly  in 

instiiic- 

ey-Gen- 

d  the 

United 

interpo- 

rica,  in 

erceira. 

ents,  in 

Case, 

of  the 


?r 


of  due 
at  the 
sh  pos- 
we  con- 
of  the 

lirit  and 
Spain, 
iference 

jump  to 
first  ru- 
day  he 


has  resisted  temptation  and  pursuasion  to  take  that  step,  moved  to  ab- 
stinence by  his  own  conviction  of  public  duty  and  right. 

Secondly,  in  case  after  case,  Cubans  seeking  to  fit  out  vessels  in  the 
ports  of  the  United  States  have  been  arrested,  and  their  attempts 
broken  up  by  the  executive  interposition  of  the  President. 

Thirdly,  Spain,  as  the  treaty  friend  of  the  United  States,  has  not  been 
subjected  to  the  wrong  of  seeing  her  rebels  raised  in  the  ports  of  the 
United  States  to  the  level  of  herself  their  sovereign  ;  but,  on  the  con- 
trary, has  been  allowed,  as  she  had  a  right  to  do,  openly  to  build  or 
purchase  men-of-war  in  the  Unite«l  States. 

Finally,  no  cruisers  have  sailed  from  the  ports  of  the  United  States 
to  prey  on  the  commerce  of  Spain.  Therefore,  if,  which  we  deny,  Spain 
suffered  any  damages  in  the  premises  at  the  hands  of  the  Americjiii 
(Jovernment,  those  damages  must  be  of  the  nature  which  Great  Britain 
regards  as  indirect  damages,  and  therefore  never  in  any  circumstances 
due  from  one  to  another  gonernment. 

(ji)  Allusion  also  occurs,  in  the  lUitish  Case  or  Counter  Case,  to  some 
occasions  in  which  persons  in  the  United  States  have  in- 
vaded, or  attempted  to  invade,  the  Canadian  Dominion. 

Such  occurrences  have  existed,  as  the3'  do  in  all  frontier  countries. 
As  to  the  first  of  them,  it  deserves  to  l)e  stated  that  special  provisions 
of  law  were  enacted  to  enable  the  President  of  the  United  States  more 
etl'ectually  to  discharge  the  duties  of  the  Government  toward  Great 
Britain. 

In  reference  to  that,  and  son)e  other  occurrences  of  the  same  nature, 
it  is  well  to  note  the  testimony  borne  by  Sir  lloundell  Palmer  in  a  speech 
made  by  him  in  the  House  of  Commons,  already  (pioted  on  a  particular 
point,  and  in  which  he  further  says : 

I  wish  to  imiirosH  upon  tho  House  that,  as  far  as  the  euCorcement  of  their  foreigu- 
ciilistmont  act  ia  conecriu'd.  we  have  absolutely  no  grievance  aj^aiust  them,  (the  United 
States.)  Thi.-y  have  afj;ain  and  aj^aiii  restored  jtri/.es  captunnl  in  violation  of  that  act. 
As  recently  as  the  Russian  war,  in  a  case  wlu-re  we  complained  that  a  vessel  called  the 
Maury  was  fitted  out  in  violation  of  the  foreijjn-enlistment  act,  they  iuuuediately 
detained  that  Acssel,  lier  clearance  was  stopped,  and  an  ininiiry  was  subse((uently  di- 
rected, and  that  inquiry,  coiulucted  entirely  to  our  satisfaction,  ended  in  our  express- 
iiifi  a  iielief  that  there  were  no.  real  i^rouiids  for  the  suspicion  entertained.  In  tlie 
interest  of  peace  and  amity  between  tlie  two  eotmtries,  therefore,  I  wish  tho  House  to 
understand  that  we  have*  no  f;'rievanee  aj^.iinst  them  with  rej^ard  to  the  forei^fu-enlist- 
luent  act,  and  that  it  deeplv  concerns  our  honor  to  ♦■nforce  the  foreij^n-enlistment 
act.' 

In  reference  to  later  incidents  of  the  .same  class,  in  which  Irishmen  in 
the  United  States  have  attempted  to  invade  Canada,  we  present  the 
testimony  of  the  British  minister  in  the  United  States,  whose  dispatch 
testilies  in  terms  which  may  titly  dose  this  i)art  of  the  present  Argu- 
ment, as  follows : 

W.^sniNiiTON,  July  I'i,  186(5. 

Snt:  I  have  duly  reported  to  Her  Majesty's  (iovernnumt  the  disturbances  that  lately 
took  place  on  the  frontiers  of  New  Ihunswiek  and  Canada,  and  the  measures  taken 
by  the  Government  of  the  United  .Statt's  to  ])revent  those  expeditious  of  uriued  meu, 
in  breach  of  the  neutrality  laws,  from  beinj;  carried  into  eHecl. 

I  am  directed  by  Her  Majesty's  {government,  in  reply,  to  state  that  for  some  months 
past  they  have  observed  with  regret,  though  without  alarm,  the  organization  of  the  Fe- 
nians in  the  United  States  ;  but  tlu-y  have  invariably  ubstain(;d  from  making  any  official 
representation  to  the  cabinet  at  Wa.-thington,  because  they  felt  they  had  no  right,  as  in- 
deed they  had  no  desire,  to  interfere  with  the  administration  of  the  law  iu  the  United 
States.  They  had,  nu)reover,  a  perfect  conviction  that  if  ever  the  time  came  for  the 
fultillnient  by  tho  IJnited  States  of  the  obligations  which  international  law  imposes 
upon  friendly  and  allied  governments,  that  Covernnient  would  take  all  the  measures 
which  those  obligations  and  regard  for  its  own  honor  might  call  upon  it  to  perform. 

'  Hansard's  Debates,  vol.  clxxiii,  p.  955. 


II 


MMIMMiMHIHiMiM 


46 


AR(iirMKNT    OF    TMK    rMTKD    STATKIS. 


i 


l[t>r  Mivjosty'sCJovcrnnioiit  nijoici^  to  fiiiil  that  Miis  coTifiili'ncoliasbi'pn  I'lilly  JiistiJiod 
by  tho  result,  ami  that  tlm  (iovfiinncHt  (»f  tlit^  I'nitod  States  acti'tl,  when  tho  iiKiriKwit 
tVii"  actiiii;  caiiic,  with  u  viyi",  n  [JroiiiptiicsH,  mid  a  sincerity  wliicli  call  toith  tlio 
^varnlt'8t  acUnovvlod^iiiiciitH. 

I  am,  ill  coiisciiiicnrc,  iriMlriictcd  to  (>xjin'.ss  to  tho  (inviM'iimriit  oC  \hi\  Unittul  Stalc^H 
tho  thanks  of  lli  r  Majesty  and  llcr  Maji'.sty's  (iovcinmcnt  (or  (he  (Viendiy  and  ('ner;;etic 
assistance  whicli  they  Inive  atVorded  in  (h-Ceating  the  attempts  to  distnih  the  peaco  of 
Her  Majesty's  possessions  in  North  America. 

I  have  the  honor  to  he,  witli  the  highest  consideration,  ^ir.  yor.r  most  ohedient, 
humble  servant, 

FKKDKKICK  \V.  !'..  IJinCE. 

]lon.  "Wii.i.i AM  II.  .'^i:WAiii>,  ,yc.,  .)'•().' 

AVc  iTiiiaik,  in  pa.ssiii};,  tliat  in  all  tlio  oasos  rol'ornMl  to  by  Sir  Fred- 
erick Jiriicc  and  Sir  Ivonndell  Painter,  of  the  conduet  of  tho  United  States 
in  relation  to  Great  Ilrilain,  thi.s  conduct  has  been  the  same  at  all  times 
in  relation  to  other  jjovernments.  As  wa  are  entitled  to  the  ascription 
of  "  a  vigor,  a  pnxnptness,  and  a  sincerity  which  call  forth  the  warmest 
acknowledji'ments,"  in  the  former  class  of  occurrences,  so  we  are  in  the 
latter,  tho  JJritishCase  and  (Joiinter  Case  to  tho  contrary  notwithstand- 
ing. In  every  instance  of  attemi)t  to  violate  our  neutrality,  on  the  part 
whether  of  governments  or  of  private  persons,  we  have  set  in  action  all 
the  juridical  machinery  of  the  municipal  law :  we  have  ]>ushed  into  vig- 
ilance our  custom-house  otlicers,  which  England  has,  and  our  district- 
attorneys  and  marshals,  which  England  has  not;  but  in  addition  to  and 
beyond  all  that,  the  President  of  the  Unite*!  States  acted  in  advance  to 
enforce,  not  diligence  only,  but  active  vigilance,  on  all  subordinate  of- 
ficers of  the  (Jovernment;  and  when  wrong-doers  manifested  obstinate 
persistence  of  wrong,  the  milicary  aiul  naval  olHcers,  of  character  and 
discretion,  like  General  Scott,  Admiral  I'aulding,  and  (Jeneral  IMeade 
wereemidoyed  to  apply  to  such  i)er.sons  the  oidy  method  of  prevention 
applicable  to  the  case,  namely,  force,  to  maintain  the  domestic  order  and 
foreign  peace  of  the  Government. 

AVe  regret,  and  have  suHicient  cause  to  regret,  as  the  present  contro- 
ver.sy  shows,  that  Great  Britain,  who  cannot  blind  lunself  to  the  vigor, 
])romptness,  and  sincerity  manifested  by  the  American  Government  in 
repressing  such  acts  in  America,  has  not  manifested  equal  vigor,  ])rompt- 
ness,  and  sincerity  herself  in  rei)ressing  similar  acts  in  (5reat  lUitain. 

(//)  The  counsel  of  the  United  States  would  gladly  abstain  from  refer- 
ence to  another  occurrence  in  this  class  of  incidents,  be- 
.iJr,n'B'i\',^''o!m.''In  causc,  uuliko  what  has  gone  before,  it  is  not  of  a  defensive, 
but  of  an  accusatory  character. 

It  singularly  happens,  Mhile  Great  Britain,  in  her  Case  and  Counter 
Case,  is  so  careful  to  recount  what  she  assumes  to  be  the  imperfections 
of  the  United  States,  in  the  execution  of  our  foreign-etilistment  act, 
heaping  nj)  a  long  train  of  accusations  against  us,  she  forgets  that  the 
most  serious  of  all  the  occasions,  in  which  the  United  States  have  been 
called  on  to  act,  was  the  attempt  of  Great  Britain,  to  the  i)rejudice  of 
Kussia,  to  violate,  on  a  large  scale,  the  neutrality  of  the  United  States. 
And  the  occasion  is  the  more  remarkable,  seeing  that  the  British  min- 
isters themselves,  with  characteristic  misconception  of  the  whole  subject 
of  neutral  rights  and  duties,  procured  a  special  act  of  rarliament  to  be 
passed  for  the  single  and  precise  object  of  enabling  them  to  invade  the 
sovereignty,  and  to  violate  the  local  laws,  of  every  country  in  Euro[)e 
and  America. 

We  allude  to  the  act  of  Parliament,  passed  at  an  early  day  during  the 
war  between  Great  Britain  and  Russia,  profes-sedly  and  avowedly  to 
enlist  soldiers  abroad  of  its  own  authority  for  service  against  Russia. 

'  Documenta  annexed  to  the  American  Case,  vol.  11.,  p.  I'M. 


MISCELLANEOl'H    CONSIDERATIONS. 


47 


•rill  tli(* 

\  StivtoH 
ii»'r}j;i>tic 
peace  of 

hciliriit, 

a;cE. 

r  VivA- 
[  States 
U  ti  11108 
jriptiou 
fiinnost 
e  ill  the 
hstaiul- 
Lhe  part 
utioii  all 
iito  vig- 
ilistiict- 
n  to  and 
vaiice  to 
ill  ate  of- 
)bstiiiate 
cter  and 
il  ]\Ieade 
•evention 
^rdcrand 

t  cont ro- 
te vi.i;<)r, 

imuMit  in 

,  proMipt- 
ritain. 

oin  refer- 
iM»ts,  be- 
d'ensive, 

Counter 
trfections 
^I'vMit  act, 

that  the 
[ave  been 
hjudice  of 
h\  States. 
Itish  niin- 
le  subject 
lent  to  be 
Ivade  the 
\\\  Europe 

luring  the 
bwcdly  to 
Llussia. 


We  understand  how  tlie  Ilritish  nnnislers  fell  into  the  error  of  thus 
exposing  to  the  g:i/,e  of  tiie  woihl,  on  this  occasion,  the  diflicnlly  of  ob- 
(ainiug  troops  at  home  In  loruuM'  wars,  as  wc  in  tlio  United  States 
had  sail  exi)erience,  it  had  been  the  custom  of  (Jreat  Dritain  thus  to  act, 
ata  ])eriod  of  time  when  the  enlistnu'ut  of  foreign  troops  was  a  practice 
all  but  universal  in  l'iiir(»pe. 

l)Ut  what  we  should  not  ninlerstand,  but  for  the  talse  theory  which 
])ervades  the  Case  and  ('OunterCase  of  (Ireat  IJritaiu  here,  is,  that  the 
Ibitish  ministers  should  have  i?nagin«'d  that  tlu'  ^/////^s•  of  (Ireat  Uritain, 
as  resi)ects  all  foreign  governments,  are  detera\inai)le  by  an  act  of  Par- 
liament. 

On  both  points  Ibitish  ministers  apjx'ar  to  entertain  consistent  theory. 
The  neutral  obligations  of  (Ireat  Ibitain,  as  lespects  any  tbreign  gov- 
ernment, are  but  such  as  are  set  forth  in  an  act  of  rarlianuMit;  and 
rarliament  is  to  deternune  her  rifilits  as  respects  foreign  governments. 
On  both  related  points  they  actiind  think  as  if  no  law  of  nations  exist- 
ed, or,  at  least,  as  if  an  actof  Parliann^nt  could  dictate  the  lawot  luitions 
for  all  other  governments. 

Tliat  enlistment  of  troops  in  any  (lountry,  for  foreign  service,  can  only 
he  made  lawfully  with  the  (consent  of  the  local  government,  is  elementary 
doctrine  of  public  law.' 

It  is  e«pially  well  established  at  the  ])resent  time  that,  if  sucii  en- 
listment be  allowed  by  a  neutral  to  one  belligerent,  it  must  bo  allowed 
to  the  adverse  belligerent;  and,  since  the  publication  of  Sir  Ivobert 
L'hillimore's  great  work  on  international  law,  i)robably  no  person,  even 
in  (Ireat  Ib-itain,  would  dispute  the  j)roposition. 

It  took  tinn»,  however,  for  i>/'///.s7i  Jurists  to  open  their  eyes  to  this 
selfevident  doctiine  of  neutrality.  AVildman  seems  to  have  little  or  no 
conception  of  that  jioint,'-  ami  it  needed  that  Manning  should  enter  into 
elaborate  argumentation  on  the  subject,  as  if  it  were  a  wholly  new  (pies- 
tion,  in  order  to  introduce  the  righttul  opinion  into  (heat  IJiitniu.' 

And  yet  (Jreat  Jbitnin  herself  had  manifested,  by  several  acts  of 
Parliament,  that  she  saw  clearly  the  inconvenience  and  the  wrongful- 
ness of  foreign  governments,  or  private  jiersons,  enlisting  troops  within 
the  Jurisdiction  of  (Ireat  Britain,  without  the:  authorization  of  the  gov- 
ernment.* 

There  never  was  any  doubt  or  hesitation  upon  this  subject  in  the 
Unite«l  States.  Our  statesmen,  beginning  witli  Mr.  Jetl'crson,  at  all 
times  have  uneciuivocally  and  positively  maintained  it;  and  our  Jurists, 
such  as  Wheaton,  Lawrence,  Kent,  and  llalleck,  are  careful  to  state  the 
doctrine  with  e.xplicitness.  At  the  present  day,  in  presence  of  the  ex- 
tensive erudition  and  systematic  completeness  with  which  Sir  Kobert 
Phillimore  has  expounded  the  principles  of  international  law,  iiu^luding 
this  point  in  all  its  relations,-'  it  might  seem  that  the  truth  w^ould  be  ac- 
cepted in  Oreat  Britain. 

Nevertheless  the  same  old  error  still  lingers  there,  if  we  may  Judge 
from  the  tenor  of  the  JUitish  (Jase  and  Counter  Case ;  that  '•  insularity" 
of  legal  perception,  of  which  eminent  English  Jurists  speak,  still  ope- 

'  WoltV,  Jiift  fjoitium,  s.  747.  Viittel,  Droit  dcs  <jcm,  6il.  Priulier-Foiloie,  liv.  iii,  chaj*. 
T,  s.  44'J.  Kliiber,  Droit  din  gctm  moderiicn  de  V Europe,  s.  'iS.').  Martens,  I'rcvis  dii  droit 
ii('8  qins,  s.  '.Ml.  Galiani,  Dei  dorcri  do  principi  neulrali,  \>.  :{J.'>.  Hautefeuille,  Droits  et 
diroirs  des  7iatioHS  neutrcs,  toino  i,  'M'i,  :M:!.  Ri<|ucliiie,  Ihrerho  publico  intrrnncioiinl, 
torn,  i,  p.  144. 

■International  Law,  vol.  i,  p.  (54. 
'  Law  of  Nations,  l>ook  iii,  cliap.  1. 
SSeo  numerous  acts  of  Parliament  on  th'i.s  sulij 
tional  Law,  vol.  1,  p.  212. 
Vol.  iii,  p.  -209  et  seq. 


Iijeet,  collected  in  Pliillimoro's  lutor/ia- 


if 

I 


48 


AK(;rMKNT    OF    THE    DiNITKl)    .STATKS. 


rates;'  and,  while  the  r>ritiHh(Joveriimeiit  acted  in  tho  niattiT  of  cnlist- 
incntH  as  if  the  act  passed  dniin^  the  war  with  Jliissia  was  supreme 
over  all  the  mvcnifin  rifjhta  of  other  jjovcrnnicnts,  so  it  now  assumes 
that  an  act  of  I'arliament  is  sui)rome  over  all  the  neutral  rifj^hts  of  other 
governments. 

On  the  former  occasion  (Jreat  Britain  came  in  (conflict  with  the  neu- 
trality laws  of  the  United  States  and  I'russia.  In  each  of  tluse  countries, 
she  assumed  to  carry  into  effect  a  domestic!  act  of  Tarliamentof  her  own, 
without  askinjjf  the  consent  of  the  local  jjovernment.  In  each  of  them, 
her  agents  were  indi(;ted  and  convicted  of  violation  of  the  municipal  law 
of  the  land.  And  in  the  United  States,  where  the  British  minister  was 
personally  compromised  in  these  unlawful  ac^ts  with  various  IJritish  con- 
suls, in  disregard  of  their  diplomatic  or  semi-diplomatic  (luality,  it  be- 
came i>ainfully  necessary  for  the  American  Government  to  withdraw  the 
exe<piaturs  of  the  consuls,  and  to  deliver  his  ])assport  to  JMr.  Crami>ton.^ 

We  trust  the  Tribunal,  on  the  i)erusal  of  those  documents,  will  be 
satisfied  of  the  sincerity  and  <;ood  faith  with  which  the  American  Gov- 
ernment executed  its  municipal  laws,  and  dischar^icd  its  neutral  duties, 
on  this,  the  only  occasion,  since  the  revolutionary  action  of  France,  in 
whi(!h  any  forei<«ii  jiovernment  has  undertaken  to  perpetrate  such  acts 
in  the  United  States. 

Qualis  ah  iiirrpto  talis  ail  Jimm.  With  (;onsistency  unwavering,  and  at 
whatever  hazard  of  domestic  or  Ibrei^ii  inccmveiiience,  even  if  it  were 
friendly  powers  like  Franc*^  and  (lr«'at  Jiritain  with  which  we  were  thus 
brought  into  contention,  the  United  States  have  steadily  adhered  to  the 
principles  of  international  neutrality;  and  we  may  well,  therefore, 
demand  the  observance  of  those  juinciples,  or  reparation  tor  their  non- 
observance,  on  the  part  of  Great  Jhitain. 

X.  We  repeat  a  ])revious  remark,  that  we  are  not  disjwsed  to  follow 
the  example  set  us  in  the  IJritish  Case  and  Counter  Case,  as 
we  mifiht  well  do,  by  enterinj^'  into  examination  and  arraign- 
ment of  the  course  pursued  by  Great  Jbitain  at  various  times 
on  the  subject  of  neutrality  in  her  controversies  with  other  governments. 
It  is  uot  agreeable  to  a  friend  to  be  compelled  to  say, 

'' All  liis  faults  observod, 
Set  in  a  iioto-luKik,  Icanud  and  coiimd  by  note, 
To  cast  into  my  ti'ttii." 

This  the  IJritish  Case  does,  wantonly,  olfensivcly.  If  the  United  States 
were  to  scan  with  like  evil  eye  every  occasion  in  which  Great  Britain 
might  seem  to  have  ueglecteil  her  duty  as  a  neutral,  or  to  have  violated 
the  rights  of  neutrals,  we  might  produce  a  fearful  list  of  charges;  auil 
such  examination  would  be  more  ])ertinent  to  the  present  issue,  and 
bring  into  view  matters  more  jnegnant  of  instruction,  than  those  as  to 
whicli  the  conduct  of  the  United  States  is  called  in  question  here  by  the 
British  Government. 

We  content  ourselves,  in  this  relation,  with  a  brief  reference  to  two 
or  three  great  controversies  of  special  interest  to  the  American  Govern- 
ment, where  the  British  Government  has  manifested  its  views  of  the 
duties  of  netitrality,  and  of  the  manner  of  dealing  with  alleged  breaches 
thereof  by  the  neutral. 
1.  The  celebrated  orders  in  council,  issued  by  the  Britisli  govern- 
ment in  retaliation  of  the  Berlin  and  Milan  decrees  of  the 
first  Napoleon,  involved  intense  assertion  of  neutral  obliga- 

*  Phillimore,  Ist  ed.,  pirf.,  p.  11  ;  Clntty'fi Practice,  pref.,  p.  5,  note. 

'See  the  dociunente  oii  this  subject  in  the  Appendix  to  the  American  Counter  Case. 


Ori'.'it  llnl.iin  i 
tilliKfrt  lit  t^■^^ 
■eutntln, 


Orders  in  courii  il. 


-^ 


MISCKLLANKors  CONSIDKKATIONS. 


40 


f  culist- 

issuines 
jf  otber 

[ho  neu- 
luntrieH, 
lierown, 
)f  tlieiu, 
;ipal  Isvw 
stci-  was 
tisU  con- 
[y,  it  bc- 
draw  tlio 
aiupto"'^ 
,  will  be 
can  (jov- 
iil  duties, 
'lanee,  in 
sucU  acts 

\g,  and  at 
if  it  were 
wove  thus 
led  to  the 
therelbre, 
their  uoii- 

l  to  follow 
,'!•  Case,  as 
id  anaigu- 
•ious  times 
orniueuts. 


Ited  States 
tat  r>ritaiu 
.  e  violated 
irges;  and 
[issue,  and 
those  as  to 
[ere  by  tho 

ice  to  two 
ui  Govern 
Lws  of  the 
tl  breaches 

b1i  govern- 
rees  of  the 
[ral  obligsv- 

lounter  Case. 


*i(»ii ;  and  tlnit  in  tlic  form  ofa(;ts  of  force  as  against  tlio  Tnittd  States, 
wliicli  icspoinU'd  lo  tlicst;  wrongrii!  measures  by  an  act  of  Congress 
forbidding  all  coiniiu'rcial  intorcoursc  hctworn  our  citi/cns  and  cither 
(iftlic  l»('llig<'r«'iits.'  This  act,  says  IMiilliniorc,  "ranks  higli  in  the  liis- 
•oiy  of  nations.  It  conveyed  a  just  and  dignified  n-buke  both  to  I''ran('t> 
and  Hiigland,  and  it  was  worthy  of  the  eonntry  which  has  contributed 
such  \aluable  nialerials  to  tin;  edifice  of  international  law."- 

L'.  The  discussion  i)et\vceu  (Ireat  I*ritain  on  theoiu^  hand, and  France 
on  the  other,  in  the  first  year  of  the  American  Iievolution,  ,,„„.,.  ,„«„,  i 
produced  three  pajiers  on  the  subject  of  neutral  obligation,  \',;,; ,;:,,;'''' /rvu'i','" 
of  the  greatest  importance  in  the  diplomatic  historyof  mod-  ■" 
era  times,  and  which  contain  nmny  observations  i>eitinent  to  the  present 
controversy,  namely,  the  "  /v'/y/o-vc  di's  inntifs  <U;  hi  coiuhiite  tlu  Hoi  dv 
Frniurrelxtti'vmi'nt  a  V An<jh'tct're,lll\) ;"  the  responsive  •'  Mrinoin' Jnstlji- 
cotif,"'  i)nblislied  by  the  court  of  Loinlon,  the  authorsliii)  of  which  is  at- 
rriltiitctl  to  the  historian  (Jibbon;  and  the  ^^  Ohscrrittitnts  tie  hi  Conr  th' 
Vvrsnilh's  siir  h:  Mnnohe jnHtiJwatif  dv  hi  Cour  dc  Londns."  ■ 

;').  Meanwhile, controversy  was  pending  between  (Jreat  JJritain  and  (he 
Xetherlaiui.'.  similar  to  that  with  France.  The  JU'itish  (lov-  ,„„,..•  t,>«nr,i 
crnment  complained  that  the  (lovernment  t>f  the  Cnited  ■  ^' '■•''"' i-- 
Provinces  had  not  exei'cised  due  diligence  to  luevent  their  subjects  from 
rarnishing  arms  and  other  supidies  to  the  Americans:  and  that  abuse 
of  the  right  of  asylum  in  the  ports  of  the  Netherlands  had  been  sufi'eiccl 
tlic  advantage  of  the  Americans  and  the  prejudice  of  (Jreat  lUitain. 

Fspccially  is  it  interesting  to  see,  in  this  controversy  with  thcNether- 
hmils,  that  (Jreat  IJritain  complained  incessantly  of  occurrences  in  the 
Dutch  colonies  of  Saint  Eiistatius,  Saint  Christopher,  (Juracao,  and  Suri- 
11. mi,  charged  as  breaches  of  neutrality,  although  acts  by  no  means  so 
serious  as  those,  of  a  similar  nature,  which  tln^  United  States  here 
•  liarge  against  (Jreat  IJritain,  in  regard  to  the  Fiahamas,  ISermuda,  and 
other  Ihitish  possessions  in  tlie  West  Indies. 

riio  CJovernm(Mit  of  the  United  Frovinces,  unlike  J'rance,  had  no 
thought  or  purpose  of  departing  from  neutrality.  Jt  defended  the  acts, 
inculpated  as  breaches  of  neutrality,  by  the  same  argtunents,  in  refer- 
«'nce  to  commerce,  ami  to  the  right  of  asylum,  as  Lord  Jtussell  employed 
in  discussion  with  IMr.  Adams.  ]>ut  the  ]>ritish  (Jovernnient  regardeil 
all  those  acts  as  acts  of  neutral  negligence  or  of  belligerent  complicity 
on  the  part  of  the  United  Frovinces,  and  as  a  sutlicient  cause  of  war, 
and  thus  forced  the  Netherlands  into  an  armed  alliance  with  the  United 
States.-* 

J  hit  the  prudent  and  sagacious  statesmen,  who  have  administered  the 
foreign  affairs  of  the  United  States  in  the  present  controversy,  have 
preferred  a  patient  perseverance  of  itisistance  in  the  right  direct. on,  so 
as  to  cause  arbitration  to  be  substituted  for  the  more  dread  issue,  to 
which,  in  like  circumstances,  men  of  less  wisdom  conducted  Great 
Ihitairi. 

X.  The  Counsel  of  the  United  States  desire  to  say  in  conclusion  of 
this  part  of  the  Argument,  that  we  have,  by  the  imperative  f.,.„„„i„i,i,„,„„„^ 
exigencies  of  the  present  controversy,  been  compelled  to  °'  """""• 
i'oiiipare  and  contrast  the  manner  in  which  the  duties  of  neutrality  have 
boon  performed  at  ditferent  epochs  by  the  United  States  and  byGreat 
Britain,  and  especially  to  insist  on  the  delinquency  of  the  British  Gov- 

'Maiminjr,  Law  ofNatious,  vol.  iii,  cb.  10;  Pliillimore,  vol.  iii,  p.  412. 
■  Vol.  iii,  p.  U.'iO. 

'See  these  (locnments  at  large  in  Martens,  Causes  cclchrcs,  tome  iii,  canse  2de. 
^  See  the  history  of  this  controversy  in  Mart<!us,  Causes  celibres,  tome  ii,  cause  lOmo. 
4C 


:e',  * 


50 


AK(;iMKNr    OF    THE    I'NITKl)    STATI.S. 


criiiiuMit.  ill  this  icspcct,  ichitivcly  to  tho  Aniciican  (Jovoiiimeiit.  ^V(' 
f'oulil  not  otliiMwise  (lisL-liaijuc  the  special  duty  dovolvo'l  upon  us  in  Ix'- 
lialf  of  tlie  Tniti'd  States, 

We  concede  tlie  endiarvassments  wliich  a  state  of  war  throws  ui»(»n 
neutral  nations,  by  reason  of  tiie  conllict  which  it  involves  betwi  "i  the 
interests  of  the  latter  and  these  of  the  belligerent  state  or  states.' 

The  right  of  neutrality,  we  concede  and  admit,  is  co-extensive  with 
the  rii'lit  to  deelar(>  war  and  to  make  ])eace.     All  these  ri<>hts  are  in 
clndeu  in  the  simple  right  of  initional  indeiiendence  and  sovereignty.- 

JJecogni/.ing,  tlien,  the  right  of  neutrality  as  e(iuaHy  sacred  with  the 
right  to  make  war,  we  insist  that  the  duty  of  neuti'ality  <'orresponds  to 
the  right,  although  to  the  -prejudice  of  one  (tr  the  other  belligerent :  and 
ill  so  far  as  the  right  of  neutrality  (>!)structs  belligerent  operations,  the 
neutral  State  may  nevertheless  stand  on  its  neutrality,  even  <-onib::tively. 
Uut  such  neutral  must  stand  there  in  an  attitude  of  absolute  i.npar 
tiality:  that  is  of  course.' 

And  such  imjiartiality  implies  as  well  impartiality  of  inaction  as  im- 
p.artiality  of  action.' 

Neutrality,  as  d-  'iied  by  I'vliil)^',  is  the  condition  of  a  neutral  peojile. 
who,  in  the  case  ol  war,  lender  succoi'  to  neither  of  the  belligerent  jiar- 
t  ios. ' 

As  «leti!ied  by  lliibiiei,  neutrality  consists  in  complete  inaction  ri'la 
tively  to  the  v»ar,  anil  in  exact   and  jieifect  impartiality,  manifested  b\ 
nu'ans  of  acts  with  legard  to  the  belligerents,  in  everything  which  has 
relation  to  tlie  war,  and  to  the  means,  direct  and  indirect,  of  carrying  it 

Oil." 

A/.iini  defines  neutrality  to  be  the  i-ontinuation  of  the  :  tale  of  peace 
on  the  i)art  of  a  power,  which,  on  war  arising  between  two  or  more  na- 
tions, abstains  absolutely  from  taking  any  part  therein  ;•  and  this  last 
detinition  has  the  apiiroval  of  one  t>f  the  most  con  ^iiicuous  of  the  modern 
juiists  oi'  Italy. 

IJiit  in  whatever  sense  neutrality  is  to  be  defined,  and  howsoever  it 
originates,  certain  it  is,  that  eh  neutrality  must  be  one  of  absolute 
good  faith  :  it  must  not  degenerate  into  war  in  disguise.' 

Accepting,  as  we  do,  the  comiuehensive  delinilion  of  neutrality  given 
bv  I'Moit'-.  wi'  need  not  scrnjile  to  cite  tlie  apineeiation,  which  tiiat  intel 
ligent  author  e.\[uesses,  of  the  historical  altitude  of  the  I'nifed  States 
in  the  relation.  , 

'"In  spite,"  says  IIok',  "of  the  elVoits  of  Holland  ;.  id  Scandinavia, 
the  can>t'  of  neutrals  found  no  real  support  until  there  arose  a  jiowerfu'. 
Siate  to  maintain  theii  comnion  rights.  It  Avas  not,  in  truth,  before  the 
constitution  (if  the  potent  neutral  State  of  the  rnited  States  of  America, 
■which  was  followed  by  the  league  of  rlie  armed  nentrality  in  tiie  seas  ol 
Europe,  that  the  right  of  neutrals,  having  solid  suppOiC  to  stand  on. 
began  to  develop  itself  progressively,  until  that  right  reached  its  assured 


r>':ii(ijii,  \<t.  i,  <•.  ;!;   lliiiiti' 
''<'/. ;  lIclVtiT,   />»•(>(/  iiih'i nil- 


'  Si'oCa.saniiva,  Drl  Dirillo  liilfrtit\:ii»inl>;  vo'.  ii.  :       ','1. 

-  KliilnT.     Droit  (Irs  (ictiK,  v^ 'JTl* ;  lialijiiii,  Dri  Doctri  n'l,' 
iV'uilU".  Ih'oils  el  /)croirf>  <lvn  \tiliinin  iifidn't,  tmii.  i,  ji  .><(i. 

■  Mar    MS.    l*roit  i!cn  (Ini.'i,  ^'^\.  \i-\>io,  tituw  V\.  \>. '2'J2  i( 
Uotiiil,  p.  •J7ti  ft  m<}.;  (';i,iii'liy,  Ih'oil  iiiKrithiif.  ]»a.sisiM). 

'  MasM',  I.t<  Droit  cammcrtiitl  ilmi»  ttm  Udjuiortu  uv<r  !<■  Droit  ih-i  tiiii",  loiiio  i,  ]i.  li)."). 

'•  Droit  (f(  1  CuiiH,  cliai*.  ''>  ^^  '^^''■ 

''  /'(■  lit  Sdixir  (Itx  Hdliiiioitx  iiriilrix,  tonic  i,  part  I,  ('?'..i>.  ii. 

"  Dirillo  Marillimo  ih.H'  Kiiropn,  cai).  1.  art.  !{. 

-  Si'c  tilt  i'(iiii|)lcl<'  anil  i'\liaiisitisf  <lis<;uM^il»ll  <if  tliis  inicstioii  in  Calvo,  Drrciho  i)iti . 
iiocioiiol,  J'roriro  y  I'riuliro,  di:  Kiiroim  ti  Aniiriia,  tonii>  ii,  pp.  I,"j0,  40;i.  Sut',  ai.so,  (ios 
uer,  Droit  den  Nvutreit  siir  Mer,  punsiiii. 


lit.    ^V(• 

us  in  l>e- 

\VS    UlMtll 

*vt;>'i  the 

OS.' 

live  with 
Ls  are  in 
■reijiiity.' 
with  the 
ijionds  to 
eiit :  aiul 
ions,  tlie 
ibr.tively. 
te  i.npar 


MI'^CKLLANKOUS    COXSIDRRATIONS. 


■A 


on  iis  iin- 

iil  i>eoi»U'. 
n-ent  par- 


•:■ 


•tion  rehi 
i  tested  1)\ 
^liieh  luis 
arv.vinji'  it 

i  of  peace 
■  nutve  na- 
tliis  hist 
le  modern 

,vsoever  it 
iil)Sohitr 

litv  jiivei! 
tiiiit  inti'l 
«>d  states 

uidinavia. 
I  iMiwert'iii 

M'I'ore  the 

America. 

lie  seas  <•! 

stand  on. 

ts  asinu-ed 


■,  :•■:  Hunt- 
)vit  iiiUiihi 
)  i,  )«■  !•'•''  .31 


hrcrho  inln 

ill.SO,    (it'>-- 


trinmpii,  in  re.solviM!T,  by  principles  ofjustice.  tin-  mnltit'arious  (luestions 
wliicli  had  a;iitated  past  aj^es."' 

W(;  need  not  stoj*  to  inquire  a;4airst  what  powi-r  it  was  that  tliesc 
etl'orts  for  tlie  (hnelopment  and  estal)lishracnt  of  neutral  ri!»hts  were 
directed  liy  the  neutral  ].<,>vv»'i'.<  wiiii-ii  act(>d  in  concert  to  that  j^reat 
cikI.-' 

Tho  Counst'l  of  the  United  States  mny  he  permitteu.  in  view  of  the 
cxpr.'ss  or  imi)lled  ehar<ies  of  the  1  Iritis';  Case  and  ("oniiter  Case,  to 
rej;ard  with  satisfaction,  if  not  with  pride,  the  part  thus  accoi'ded  to 
their  conntry,  in  the  maintenance  of  nentrai  rijihts,  and  the  discharge 
of  neutral  duties  alike,  by  the  impartial  voice  of  ICurope.' 

'  l''ii>r('.  jV()(MY'i»  I>niil  iiih  ritiilioiKil  jiiihlii  minuil  /(  v  Ixtohis  dr  la  iiiili>tili<iii  iiiuihriii . 
tonic  ii.  i>.  U".". 

■Sec  Caiicliy,  I>roil  MiivUimi'.  titiiic  i,  ))ivf. ;  C'iis-<.v,  I'lhixix.  Xf..\)i<'f. 
Atii(;ii;j  the  matters  wliirli  tlic  lirilisli  ( 'use  nr  Cininttr  Cast' intrni'iin's  toattriitiun 
;iri'  several  wliieli   ■lie  tiM>   insi^iiilieaiir    I'nr   notice  in  tin-  lext,  lint  wliieli   may  need  a 
word  of  coiiiiiiciitai'y. 

.loliii  Laird,  ex-jiartner  and  t'atlier  ot' '•  .loliii  Laiid,  Sons  iV  I'u..'"  aji-  .1,1 .,  i.,r,  ,.  • 
pears  inaki.^  statements  a;;ainst  tin'  I'liiled  Stales.  >•-•,-- 

TIk'  Lairds,  it  slioiild  seem,  would  lietler  hide  tlieir  licads.  And  it  would  scciii  tliat 
(Irc.'ir  Hritaiii,  wiio,  liii;;;e!y  liy  flicir  means,  has  liecn  involved  in  acts  which  pro- 
iDundly.  and  iii'iliaiis  ))ermaiicntly,  dislnrlt  her  r<datiiins  witii  the  I'liited  .States,  liail 
liad  «|iiite  oiioii^'Ii  (d' sneli  ])ei  =ons. 

As  i<'/f;(c.s.s/j.,  tiiey  arc  worthless.  F.aird.  seinor.  dislionoi'ed  himsclt'liy  dr>ce|(ti\c  st.ite- 
meiits  in  the  1 1  onse  of  < 'ominous  with  respect  to  the  o]icrationso|"  L;iird.  .Suns  A  Co.  'J'iic 
time  when  he  cniild  win  aiiplaiise  there  !ty  hoastl'nl  hostility  to  the  I'liitcd  ,'stalcs  h;\^ 
passed.  Xi-ithcr  l-.)r<l  I'almerston.  it'  livin;^.  nor  Lord  l>ns>ell,  it'  in  the  House  ot'Coiii- 
Hions,  iioiMr.  (Gladstone  himsell',  could  hsoU  witli  complacency  to-day  0:1  the  shi)>-hiiild- 
iiii;  tiiiii  wiiicli  SI)  zealously  ser\'d  thi'  coiiredeiates,  to  the  injury  aliko  of  tJnat 
Dritain  and  ot'tln   I'liileil  States. 

\.  .lolm  Lainl  says  that  a  maii-ol'-\>ar  was  huilt  in  the  I'nitcd  States  lor  lkns>ia.  and 
delivered  to  her  dnriii;:;  her  late  war  with  (ircat  J'ritaiu.  j'rool',  a  ncwsp.-ipcr  state- 
iiieiit  ill  the  'I'imes.  Laird  and  the.  Times  are  hotli  mistaken.  'I'lic  case  of  the 
Maury,  mciilioiieil  l>y  Sir  Ivou.iidell  I'almer,  slifiws  that  at  this  jteriod  Urilish  olliecl•^ 
ill  Americ.'i,  while  enjia<j;ed  m  violatiii}^  the  American  l'orei;j;ii  enlistment  act  them- 
selves, were  w;itch(ul  to  yreNcnt  its  violation  hy  h'lissia. 

Laird  comiiiiihicalcd  to  Lord 'reiiterdeii,  Dceemhcr  ]'*.  1 -7 1 .  copies  of  let  ters  het  wi'cii 
Liiird,  Sons  A:  Co.  and  Mr.  II..  au  American,  who  corrt'Sponded  with  the  former  011  the 
■-iliijei't  of  Imildiim  a  ship  or  ships  for  the  I'liited  States.  'J'iie  corrcspondeiieo  shows 
tliiit  Mr.  il.  was  a  mere  spceiilalor  on  li>.>  own  aeccuint,  wholly  without  any  authority 
t'.oiii  the  Secretary  of  till-  N.nyof  the  I'nited  States.  ••Our  J  >;'));, r'mcni  of  .\uriil 
.[(I'aii^i,"  as  lie  imiorantly  calls  il.  and  our  "  MinistiM'  uf  the  Navy,"  \\  hieh  exDression^ 
.lioiie  oni;ht  to  li.'U  •■  satislied  the  Lairds  that  they  weri'  heitiji  rir1imi:i(l  liy  .some  iii- 
jifiiioiis  \cw  Yoilu-r.  Mr.  11.  al'iisiscly  leferreil  to  the  .Secretary  of  the  N;'.vy  to  pro- 
mote his  own  ]iiivalc  interests  or  those  of  the  Lairds. 

John  Laird,  in  the  zeal  of  his  sympathy  with  the  rchellion,  tuaile  the  samotatcmen; 
in  the  House  of  Ci.mmons  \ou'j,  ai;o,  and  was  llatly  conliadieleil  hy  Mr.  Wi  lies,  the 
Aiiiericaa  Secictarv  oi"  the  Navv. 


Tl 


11-  snperserv  I 


a  hie  Mr.  H.  had  no  com  mission  I'rom  the  American  Cox  en 


uit.    11. 


l>e;;aii  to  treat  orally  with  the  Lairds,  early  in  L-lil,  liefore  the  arrival  ot  .\!r.  Adams  in 
I'.iiniaml.  No  ollieer  ot' the  Lniteil  .States  apjicars  to  have  ci>niite:ianeed  .Mr.  II..  Imt 
the  Navy  Itvpartment,  accordiiij;  t<i  Mr.  Welles,  was  im|iort iim'd  hy  more  than  i>iie 
|"eisiin  in  hclialf  id'  .Mr.  Laird.  If  .Mr.  H,  was  the  ancnl  of  aiiyliody.  it  was  of  the 
L;iiiil>. 

The    IJritish    (ioveriimer.t    must   he  in   desperate  straits  I'or  det'eiise,  when  it   coiidi 


^'■eiids  to  resuscitate  tile  stale  ca 


Iniiin 


;  ot'  ••nil  liinniiii   tun,"  like  J(diii   Lainl,  and  to 


I'lit  tl 


ii'in  into  its  Case 


III  this  connection  wo  dispose  of  another  of  the  smaller  items  of  acciisntioii  of  tin 


I'nited  Stat 


11  is  ehaijjed  in  the  IMitish  Chhc  that  we  pnicliased  arms  in  Knj;laiid.     What  tlioi 
Was  it  not  lawful  to  do  so,  aeeoi(lin)r  to  the  aecepteil  law  nf  nations  .' 


Tl 


lis  eluuiie  is  another  illiisliiilion  of  th<>  iiijustiee  of  that  act  of  tlw 


I  h««e  lit'  iirlii*. 


Ihitish  Government  which  a.ssiimed  to  ]iiit  the  L'nited  Slates  and  thiir  rehelsoii  a  foot - 
ui;:  of  international  iMpiality  in  the  markets  of   (Jreat  Ihitain. 
Not  thus  have  the  riiited  Status  doported  Ihetuaelves  towanl  Spain  in  the  matter  of 


f 


Cul 


>u. 


V.-VFATEMKNT  OF  SOME  CKXKllAL  IWCTS  IM' liTlNKNT  TO  THE 
INOUIKV,  AND  Ari'LlCAIILE  TO  EACH  CRLISER. 


Tlio  Uniteil  Statt's  in  their  Case,  wliicli  was  t]eli\'eit'il  to  the  Tribunal 
ii„.  „,e  „,  f,,..  of  Arbitration  on  tlie  L"»th  day  of  Deeeniber  hist,  ]>resentetl 
'\T'kV"tZ'^ZuC  evideiiee  to  establish  the  foIU)\vin>^-  facts: 
,ul'/.f BnT.'ih  ."l'.-       !•  'J^"l'i'<^   before  the   outbreak  of  the   insurrection  in  tlie 

I  t  -r  -^      'it      t'j  If      ._Al'_:         A_?       1  \ ___  _i*  •  ^        1.1  ^1 


I,     Jii<ii       lu-n'i;-     iiii,     «Fii[  (.>iv  lilt     y>i     iin-      iii.-Mii  HI  I  n>ii     in     iiM' 

United  S'.iies,  Her  ?klajesty\s  (Jovernnient  invited  the  Gov- 
ernment of  the  Trencli  l^nipeior  to  act  Jointly  \vith  tiu'  iJritish  (lov- 
crnnient  in  the  anticipated  risiiifj  ol'  the  insurgents. 

1'.  That  bcf(U'e  an  arrmd  collision  had  taken  place,  llei-  .Miijesty's 
'lovennneut  «leferniined  to  reco^iii/e  the  insmj^ents  as  Iiellii^t  rents, 
whenever  ihe  insurrection  should  break  out. 

.'».  That,  in  accordanc.  with  the  previous  invitati<^n  to  the  I'rench 
(iovernnieiit.  Her  Maji'sty's  (buernnient  announced  iJs  decision  so  to 
reeo;;nize  the  insur^^ents,  an<l  invited  France  to  do  the  same,  as  soon  as 
it  heard  of  the  outbicidc  of  the  insurrection,  and  before  it  had  otlicial  in- 
formation of  the  steps  which  the  (iovcMument  of  the  I'nited  Smtes  iiro 
posed  to  tidce  for  the  suppressiDU  of  tiie  sam(». 

4.  That  after  the  annoiincenu'ut  of  this  decision  was  made,  and  be- 
tbre  the  (Queen's  I'lochimation  was  issued  in  accordaiu-e  therewith,  the 
attention  of  Her  .Majesty's  (lovernment  was  called  in  both  Iicuises  (»t 
I'arliament  to  results  which  it  was  supi)osed  would  follow  the  recojiui- 
tion  of  the  insur;;ents  as  ltelli;;erents,  \  i/,  that  they  would  be  eiditled 
to  carry  on  war  on  the  ocean,  ami  to  issue  letters-of  inaniue. 

5.  That,  simultaneously  with  the  invitation  to  the  Fremth  (lovernment 
to  Join  in  the  recoj^uition  of  the  insurgents  as  belli<;erents,  that  (lovern- 
ment was  invited  to  Join  Jler  Majesty's  Clovenunent  in  an  <'ilbrt  to  ob- 
tain from  the  insur<;ents  ct'rtain  advantaj;es  to  Ilritish  ami  French  com- 
merce, on  the  eonditi(Mi,  held  cmt  in  advaiu-e,  that  therij;ht  of  the  insur- 
jiCiits  to  issue  letters-of-manpie  should  not  l>e  questioned. 

ti.  That  these  steps  were  taken  clandestinely,  without  tlu^  knowledge 
of  the  I'nited  States;  and  that  the  desired  advanta<4'es  were  »d)tained. 
and  the  ri;,dit  of  the  insurj^cnts  to  issue  letters-ofmarque  was  reeoj; 
ni/.ed. 

7.  That  these  unfriendly  acts.  c(unmitted  before  or  soon  after  the  out- 
Itreak  of  the  ijisurrection,  were  supplemented  by  other  unfriendly  acts 
injurious  to  the  I'nited  States  and  partial  t(»ward  the  insur<;t'nts. 

S.  That  they  were  also  supjdemented  by  public  speeches  made  by 
various  members  of  ller  ^lajesty's  (ioxcrnment,  at  various  tinu's. 
throu^diout  the  war,  showin;^-  that  the  speakershad  i»ersonal  sympathies 
with  tin'  insui'.^eids,  and  had  active  d«'sires  that  they  should  succee<l  in 
their  attempts  to  defeat  tlm  forces  of  the  I'nited  States. 

Tlu'  I'nited  States  further  iusist«'d  in  their  C'ase  tluit  the  facts  which 
they  had  so  established  slntwed  an  unfri«'ndly  leelin^'  toward  them, 
which  mi,ulit  naturally  lead  to,  ami  would  account  for,  a  want  of  dili- 
gence Viordi'rin^'  up(Mi  willful  ne;;liyence. 

Her  Majesty's  (JovernnK'nt  has  met  this  part  of  the  Case 


■|h<-  llrif  i«h  r' 

I'^HIII.'  ltd  iktiLtl. 


of  the  Inited  States  by  the  following;'  averments 


To  the  spooiiil  cliiiptcr  of  tlic  American  C'lisc,  wliidi  \iiiimt«s  to  llu'  IJritisli  jjovorii- 


SO.ME    GEN'KRAL    FACT.S    PERTINKXT    TO    THE    INQUIRY,    ETC.    ').') 


'0  THE 


L'liVmiial 
leseiiteil 

n  in  tlu' 
the  L'0\- 
isli  (iov- 

U;iiosty's 
ijit'ix'iits, 

1'  Froiieli 
ion  so  to 
s  soi>n  as 
illicial  in- 
lates  lU'o 

I',  and  l>i'- 
'witli.  till" 

llOUSl'S  (tt 

ivcojini- 
cntitU'tl 

vcinnient 

It  Ciovcrn- 

ort  to  ob- 

nch  coui- 

thc  insur- 

|no\vl»Ml,<i<> 
(lUtaincd. 
as  ivooji- 

In- the  out- 
■ndly  acts 
iits.' 

bv 


Ms 


udo 
time 


\U\M\ 


thic 


MirceiM 


lui'iit  hostile  motives  and  cvtMi  iiisiiicoro  neutrality,  no  re]>ly  wli;\te\  er  will  lie  oli'eied 
ill  t!ii>'  Cininter  Case.  The  IJiitish  Covernnieiit  ili.stiiictly  lei'iiscs  to  enter  niinn  the  tlix- 
ciissiim  on  thewe  c'har,i;es.  First.  Iiecniise  it  would  iie  ineonsistent  with  the  sell-respect 
wliich  I'Vi'ry  ;4oveinn)ent  is  Ixtimd  to  fee]  ;  secondly,  becanse  the  matter  in  dispnti'  i- 
Mction.  and  not  motive,  ami  theretore  the  discussion  is  irrelevant;  thirdly,  lieoanse  to 
n  ply  and  to  enter  npon  a  retaliatory  exiiosition,  mnst  tend  to  inllame  the  controversy, 
u  hii'li  in  the  whole  tone  and  tenor  of  its  Case  the  Jhitish  Covernnient  has  shown  it > 
i!. •>!!(>  to  ai>pease  :  and  lastly,  with  respect  to  the  chary;es  themselves,  it'  they  were  of 
liny  weijiht  or  vidne,  the  Hritish  (ioveriinient  would  still  contend  that  the  jn'oiter  repl> 
t  )  rhiiii  was  to  ite  found  in  the  ]iroof  whicdi  it  has  siip]ilied  that  its  pi-oecediii^s  have 
liiioii^ihont,  in  idl  points,  been  governed  by  a  desire,  not  only  to  fnllill  all  clear  intei- 
ii:ition;d  duties  toward  the  (iovernnient  of  the  I'nited  States,  but  likewise,  wlu'ii  an 
iipjioitnnity  was  ollered,  even  to  j;'o  beyond  whiit  could  have  been  demanded  of  it  as  of 
ir^ht.  in  order  to  obviate  all  possiltilily  of  cavil  ajiainsi  its  conduct. 

Her  ^laje.sty'.s  (iovernnicnt  states,  in  substiinee,  tliiit  lor  tliroo  ^iven 
lousons  no  nnswor  will  bo  made  to  the  cliai.uos  niadc  by  tlio  Unitt'd 
States;  and  this  stiitement  is  Ibllowcd  by  an  averment  tlnit  "the  i)root 
which  Jler  Majesty's  Government  h;is  siii)plicd"'  ''rebuts  the  eluirjies 
wliicli  the  rnite«l  States  cotitend  to  liave  established.*'  We  luive  but 
U.'\v  remarks  to  imike  in  respect  to  these  eoiillicting  averments. 

To  the  statement  tlmt  to  reply  to  tlie  cliar{;es  wotild  be  inconsistent 
with  the  se]r-resi)ect  of  Her  ^litjesty's  (lovernment,  we  can-  H.i,„„.i.r  t,  .1- 
not  presunte  to  interpo.se  an  tmswer.  AVe  recognize  that  '''"''''  '•■'■"■■ 
each  imh'pendeiit  (lovernment  ntust  be  the  ynaitlian  of  its  own  self 
rcs])ect,  and  must  tlecitle  I'or  itself  whether  the  atteini)t  to  answer  or  to 
t'Aplain  such  facts  as  were  contained  in  the  Case  ot  the  United  States  is 
inconsistent  with  that  self-respect. 

To  the  averment  that  such  a  reply  would  tend  to  inllame  the  contro 
viTsv,  we  xt'uture  to  submit  to  the  iirbitrators  that  it  is  not  easv  to  sec 
how  a  friendly  explanation  of  ticts  which,  when  committed,  naturally 
tended  to  excite  the  jnescnt  controversy,  will  assist  in  eontinuin';'  01 
increasing'  the  feeling  which  those  acts  caused. 

To  the  assertion  thtit  a  retaliatory  exposition  would  tend  to  intlanu^  the 
coiitrover.sy,  we  r«'ply.  denying  tiiat  ;uiy  retaliatory  exposition  can  be 
made  by  Her  Majesty's  (lovernmenl.  The  tribunal  will  observe  what 
tlie ''exposition"  of  the  Cnitcd  States  has  been.  It  has  been  (.'harged 
and  pi'oxed  that  Jlcr  Majesty's  (iovernment  collectively  committed  acts, 
and  that  the  members  of  that  government  individually  made  speeches, 
tliat  revealed  an  active  feeling  of  unfriendliness  to  the  I'nited  States, 
w  liich  would  lead  to  ami  acciumt  for  th«^  acts  of  which  complaint  is  ntade 
liel.)i('  this  Tril)tiiial.  How  is  it  i)ossible  to  tmike  "ii  retaliatory  expos] 
tioii  of"  such  charges.'  (Ireat  Jbitain  is  m»t  here  comidaining  of  jin\ 
jut  <d'  the  I'nited  States.  NVhat  the  (lovernment  of  the  United  Stat«'s 
may  have  done,  or  what  the  indi\idual  members  (»!' that  (lovernment 
Miay  have  said,  in  r<'sjieet  to  the  (1(»\ (Miiment  of  (Ireat  llritain.  or  in  re 
speit  til  the  members  thereof,  toiU'hing  any  of  the  occurrences  of  the  wai 
which  may  lie  brought  to  the  notice  of  the  Iribtuial.  cannot  become 
material  or  relc\  ant  here. 

If  Her  Majesty's  (lovernnuMit  conceives  that  it  is  in  its  power  to  i)re- 
seiit  here  |»i,)(tf  of  acts  or  of  sayings  on  the  jtait  of  the  (lovernment  of 
llie  I'nited  States,  or  of  the  mentbers  thereof,  whicli  ought  properly  to 
be  t.iken  into  consideration  by  the  Tribunal,  the  charges  shonhl  be 
<>l>iidy  made,  rather  thiin  insinuated.  \Ve  feel  contident  thiit  no  such 
I'i'ool  can  be  found. 

The  averment  thitt  the  tli.scnssion  is  irrelevant  has  been  received  with 
MMprise.     W'e  had  supposed  it  to  be  ;i  fundamental  luinci-     i,„i..v„i„r  m  ,1,., 
p!c  of  law,  in  the  JurisiuiKh'nce  of  all  civilized  nations,  tlmt  ''^'^  "  "''•'""■ 
tlic  nu)tives  which  prom[>t  tMi  act  alVeet  its  dmracter;  ami  that,  when  it 


i: 


i} 


1'^ 

In 

K  ''" 

m 

1  '- 

th 

%'  ■ 

'»: 

^  \ 


Ir 


vr 


54 


AIUil'MKNT    OF    Tin:    IMTKI)    STATES. 


I 


is  attonipti'dto  <h;n',iio;i  i)riiK'ipi»l  I'ortlio  a<;ts  (tCa  siibordinato,  it  becomos 
not  only  U'levaut  but  niatciial  to  sliow  what  iiilbioiiccs  tbi^  forincr  lias 
lirouftiit  to  bear  ujton  tlio  latter. 

It  is  proved,  for  instance,  in  the  Case  of  the  T'nited  States,  that  the 
I'lorida  ^vas  armed  at  (Ireen  Cay  in  IJiitish  waters.  Her  ^Majesty's 
(lovernnient  replies  "  that  over  sueli  a  dominion  as  tiie  ISahanias,  noCJov- 
erument  could  reasonably  be  ex])ected  to  exert  sneli  a  control  as  to  i»re- 
vent  tlie  i)ossiliility  that  acts  of  this  kind  miyht  be  furtively  d<»ne  in  s(»nu' 
part  of  its  shores  or  waters."  ' 

The  fjeneral  allegation  that  acts  connnitted  furtively,  in  remote  and 
unfrerpiente*!  parts  of  a  coast,  af;ainst  the  wishes  of  atiovernnient,  and 
in  sjiite  of  well-intended,  active  etforts  to  i)revent  them,  are  not  acts 
over  Avhicli  that  Government  could  reasonabl.y  be  ox]»ected  to  exert  a 
control,  commands  the  assent  of  the  United  States.  They  would  not 
themselves  consent  to  be  held  responsiI)le  lor  the  results  of  such  acts. 
It  happens,  however,  that  each  (Jovernment  has  furnished  the  Arbitra- 
tors with  proof  that  there  was  a  controlling'  bias  at  Nassau  in  favor  of 
the  insurucnts  and  against  the  United  vStates;  and  Ifer  ^lajest.y's  i\o\- 
eminent  furnished  the  additional  proof  that  this  bias  resulteil  from  a 
similar  bias  which  was  sup])osed  to  exist  in  the  (btverninent  and  peo]»le 
of  England.  It  certainly  must  be  relevant  Ibrthe  United  States  to  show 
that  such  a  bias  did  actually  exist  in  l*^ngland ;  that  it  was  openly 
shown  by  dilferent  members  of  Her  ^Majesty's  (ioveriiment  ;  and  that 
rheir  views  ccmld  not  but  have  been  known,  not  only  to  the  colonial 
authorities  at  Nassau,  but  also  to  the  llritish  subordinates  at  Liverpool, 
(ilasgow,  ^Melbourne,  llermnda,  and  the  Barbados.  \Vhi'ther  the  acts 
or  omissions  of  their  subordinates  which  resulted  disastrously  to  the 
United  States  were  intluenced  by  the  known  wishes  of  their  sui)eriors, 
and  whether  the  cx]»ression  of  those  wishes  was  not  theicl'ore  an  ab- 
sence of  due  diligeiicr-,  is  a  legitimate  subject  f(n' aigiiment  by  the  Coun- 
sel of  the  United  States, 

f^ord  Westbnry  acknowledged  the  relevancy  of  such  evidence  when 
he  said, '' the  animus  wiili  which  the  neutral  ;!cted  is  tiic 
only  true  criterion.   - 

Mr.   Montague   l'>ernard  acknowledg«'d  it   when  he  said,  *' injnrion-^ 
M-.Moi.ia,.:.  I!.,    rciuissness  or  injurious  inattention  on  the  part  of  a(Jovein 
*'•"'•  ment  is  not  merely  something  less  than  the  greatest  possible 

promptitude  or  the  greatest  possible  care."  '•  It  has  not  been  usual  in 
international  (piestions  to  scrutinize  narrowly  the  circnmstaiices  from 
vhich  negligence  might  be  inferred  and  comphiiuts  of  actual  iiegiigence 
have  been  urged  but  rarely,  and  with  a  view  rather  to  security  for  the 
future  than  <"o  reparation  for  the  i>ast.  These  considerations  are  indeed 
plain  and  obvious,  ;ind  the  (Jovernment  of  the  United  States  is  jjiobably 
not  insensible  to  them,  since  it  is  at  pains  to  insist  that  tlie  neglect  with 
which  it  charges  tluMlovtrnment  of  (Ireat  Iliitain  was  'gross,'  'inex- 
cusable,' and  'extreme,"  HMiuivalent  or  approximate  toexil  intention.''" 

Karl  ilnssell  was  of  the  same  opinion  when  he  said:  "  It  ajiitears  to 
Her  ^bijesty's  (Jovt'rnment  that  there  ;ire  but  two(|uestioiis 
by  which  tlie  claim  of  comi»ensation  could  be  tested.  The 
one  is:  Have  the  llritish  (iovernment  acted  with  «lue  diligence,  or  in 
other  words  with  good  faith  and  honesty,  in  the  maintenance  of  the 
neutrality  they  proclaimed  :'  The  other  is,  have  the  law-ollicers  of  the 
Crown  jiroperiy  understood  the  l-'oreign-liiilistment  Act,  when  they  de 

•  BritiHli  C'ouiitiT  Case,  pp.  7^,  7!>. 

•  .\in.  CiiM',  ji.  inl. 

'  Xciitnility  of  (inat  Hiitaiii  dmiiifr  tlic  Aiiuiicaii  Civil  Wiii,  j>p.  '.\<>,  '.'>f<7. 


fcl^rl  KI109.-1I. 


.SOMH    (.ENKIJAL    FACTS    rKKTINKN  l'    TO    THE    1.\<.>IIUY,    KTC.    iJi) 


II. !•  Ilrit.-li  Cii" 


l',-.,.f  j'J>initl.-.l 
\^ith  III''  Aiit»Tl'-;iii 
(  ,1-'*  "I  III'-  "v^tf  ma- 
in- :illit  I'Hi'-IJil  line  '■! 
liiiti-h  Urnt'iiy  by 
til'*  iri.Hiirfflit",  Willi 
I  If  kiiii«l*' it  ge  111 
("■-.il  Hntiiiii. 


iliiM'd  ill  Jiuif.  ISdL.*,  to  advise  the  dcteiitioii  and  sei/.tuo  oftlic  Alabama, 
and  (»ii  othci'tK'casioiis  when  tlicy  were  asked  tcMletain  <»tliei' .ships  hiiild- 
:iiu'  or  littiiiji  in  Ilntish  ])orts."  ' 

Ilei'   INlaJesty's  (ioveiiimeiit  itself,  wlieii  it  iVanied  its  Case,  liad  not 
.iiiived  at  tlie  eoiielusion  jait  loitli  in  its  ('(tuiiter  Case.     It 
rlieii  said : 

A  cliaijic  of  iiiJinio\is  iii'i;li;;;»iic('  on  tlio  imit  (it  ii  sovcici;;!!  (iov  t'niiiiciit.  in  tliii 
I'M  Tcisc!  of  itiiy  lit  tlic  ]i(i\V('i'.s  of  s(i\ crciiiiity,  nrcds  to  l)c  siistainrd  on  stroitu  aiid  suliil 
^rmiiuls.  Every  s(>vi'ii'ij;ii  (ioMTiiincnt  claims  tlir  ii;^Iit  to  he  iiKlcitt'iidiMit  t)t' external 
^iiutiiiy  or  iiitert'ereiiee  in  the  exer'ise  ul'  these  jxiwers;  ami  the  ;;emM'al  assumption 
'iiat  tliey  are  exereised  \vi(h  i^ood  faith  and  iiasuiiahle  care,  ami  that  law  s  are  fairly 
and  iiroperly  ailmiuistcrcd.  ail  assiim)it  inn  witlmut  which  iicaee  and  friendly  inter- 
II  HUM'  could  nut  exist  anuiiij;'  naliims.  iin;^ht  to  sniisist  u  •till  il  Ikik  In  i  ii  dinplih  <  d  h;/  prtxif 
'II  l!ii  fKiilrarij.  ■ 

Tlie  Counsel  of  the  ITnited  States  will  theicfon^  o'ointo  the  diseii.s.sioii 
III'  the  (niestions  of  faet  as  to  the  .sever.tl  vessels  witli  the  fact  ThiMMi-,tn.,i  •.» 
uiicontrov«'ited,  that  Her  .Majesty's  ( iovernnient  and  the  Jll^.n'^^iLX.'i'iis 
individual  nieniliersof  it  freely, icpeatedly, and  puhlicly  .yave  '"""•'• 
it  to  he  understood  that  it  was  neither  expected  nor  desired  in  thcCalti- 
!iet  at  liondou,  that  the  I'nitetl  States  should  succeed  in  avertino-  tin; 
(lestruetiou  (»f  their  nationality:  and  that  these  ex])ectatiou.s  and  desires 
were  known  to  all  sulK)rdinates  of  Her  Maje.sty's  (loverniuent. 

The  Cuited  States  also  presented  with  their  Case  evidence  to  show 
:liat,  at  the  conunencenieut  of  the  insm-rection,  the  insur- 
gents established  on  I'.ritish  s(»il  adndnistrative  bureaus  for 
the  ]>urpose  of  niakin.:^-  Jbitisli  soil  and  waters  bases  of  hos- 
tile operations  a.^ainst  the  Cnited  States;  and  that  from 
these  bureaus  and  throiioh  i>ersons  actin.n'  under  their  direc- 
tions, or  ill  co-operation  witli  them,  the  several  ve.sselsof  whose  acts  they 
(•oni]>lain  were  either  dispatched  tVom  (Ireat  llritain,  or  wert*  su]>i>lied 
in  iliitish  ports  with  the  means  of  cairyinu'on  war  aoainst  the  I'uited 
States.  They  further  showed  that  the  existence  of  tlie.se  bureaus  was 
iirotijiht  to  the  knowleduc  of  Her  .MajestN's Ciovernment  and  was  just ifnMl 
l»y  it. 

Of  a  portion  of  this  evidence,  whicli  llei  .Majesty's  (lovernment  sees 
lit  to  style  *' a  nniss  of  confederate  papers."  the  lUitish  < 'onnter  Case 
says:  ••of  the  authenticity  of  them,  and  of  the  manner  in  which  they 
eauie  into  the  possession  of  X\n\  United  States,  Jler  llritannic  .Majesty's 
Cioverniiient  has  no  knowle<l,ue  whatever  beyond  what  it  derives  from 
;lie  above-mentioned  statement,  irhh-h  it  n-iUitKjbj uenpis  as  (nic.  Of  the 
person  by  vlioni,  and  tiie  cireuiiistanees  under  which,  the  letters  were 
written,  and  the  <'haracter  and  credihility  of  the  writers,  it  (Her  >rajes- 
i.v's  ■iovernnieiit)  knows  iiothino-  whate\ei'.  They  are  per.sons  with  whom 
this  (ioverniiient  has  n<»thinj''  to  do.  and  whose  very  existence  was  un- 
known to  it :  an<l  it  does  not  admit  as  evidences  against  (Jri-at  Jbitaiu 
any  statement  which  they  may  have  made  to  those  who  employed  them, 
or  to  <»ne  anctther."  '  '•  It  is  not.  indeed  it  could  not,  be  pretended  that 
the  correspondence  extrat'ted  from  these  papeis  was  in  any  way  known 
to  the  Jhitisli  (lovernment.  Nor  has  the  CJovernnu'nt  of  the  United 
States  furnished  the  .Vrbitrators  with  any  means  of  jiidnin;;' whether  the. 
letters  are  authentic,  or  the  facts  stated  in  tlu'Ui  true,  or  the  per.sons 
whose  names  i>urport  to  beattaelie«l  to  them,  (persons  unknown  to  the 
l»ritish  Cio'ernment,)  worthy  of  credit.  Jler  .Majesty's  (Jovernmeiit 
thiidvs  it  rij^hi  to  say  that  it  attaches  verj  little  credit  to  tliem."' 

'  llrit.  Apii..  vol.  iv,  jiaper  \ ,  [i.  :U. 
-  Mrit.  Case,  p.  Kill. 

Itritish  Counter  Case.  p.  :J. 
I  Hiid.,  K.  ..(). 


I 


r 

5(1 


AKGUMHXT    OF    THE    INITED    .STATES. 


The  Ai'bitrattn'sinay, thoreloio, assuino,  iiotwithstaiulin^^llioaveiinoiit 
on  pa}j;e  .")(),  tliat  Her  3Iajest.v'.s  Goveniment  admits  that  the  evideiiec 
vet'eired  to  caiiie  into  the  ]>o.sse.s.siou  of  tlie  United  States  by  eaptuie  at 
liic'hinond,  and  tiiat  there  is  no  serious  question  of  the  authentieity  of 
the  letters.  Tliey  may  also  assume  that  there  will  be  no  serious  ques- 
Tion  made  as  to  the  truth  of  tin;  faets  stated  in  those  letters.  Jt  is  true 
that  Jler  31ajesty".s  Government  says  that  it  attaehes  little  credit  to 
tliem.  It  is  equally  true  that  the  United  States  attaches  full  faith  to 
tliem.  The  Arbitrators  will  judge  whether  it  is  probable  or  improbable 
that  these  free  and  conlidential  letters  do  give  correct  accounts  of  the 
contemporaneous  events  which  they  describe.  They  Avill  also  judge 
whetlier  those  e\  ents  are  or  are  not  relevant  to  the  issue  between  tljc 
two  (lovernments.  The  United  States  think  that  they  are.  li'  they 
are  relevant  the  United  States  are  justitu'd  in  bringing  them  before 
the  Tribunal,  esi>ecially  as  it  ai)pearstliat  Uer]Ma jesty's  ( lovernment  was 
several  times  informed  of  the  illegal  ojierations  which  the  writers  ol 
these  identical  letters  were  carrying  on  from  J>ritish  soil  at  the  time 
when  the  letters  were  written. 

We,  therefore,  contend  that  we  go  into  the  discussion  of  the  questions 
•n,,-.  f..i,ni.„t„  of  fact,  with  the  further  general  facts  ])roved,  that  the  in- 
'  "'^'"""" '  '■  surgents  estal>iished  and  maintaine«l  unmolested  throughout 
the  insurrection  administrative  bureaus  on  J>ritish  soil,  by  means  of 
which  the  several  cruisers  were  dispatche<l  from  Jlritish  ports,  or  were 
enabled  to  make  them  thci  basis  of  hostile  operations  against  the  United 
States,  and  tiiat  Her  3Iajesty"s  Government  was  cognizant  of  it. 


I 


erniciit 

tine  at 
icity  of 
IS  qiu's- 
is  tine 
rodit  to 
I'aitli  to 
robable 
,  of  the 

•o«Mi  tlie 
If  they 
11  bofoie 
lent  was 
riteis  oi 
he  time 

uestions 
t  the  iii- 
•oujihont 
means  of 
or  were 
e  United 
U 


VI -THK  FLORIDA. 


Ii.liirlii!! 
Mr.   AiliM 


Wt"  now  i)rocee»l  to  refer  tlu' Aibitrators  to  the  cvith'nce  upon  wliieh 
the  Government  of  the  United  States  relies  as  applieahh'  to     ,,,.^.,,1. ,.  i.v 
tlie  ease  of  eaeh  vessel  sei>arate]y.     AVe  beyin  with  the  Fior-  ' "" "' 
ida. 

'i'iiis  vessi'l,  nncU'r  the  name  of  the'  ()ret<>,  was  bnilt  at  Jiiverpool, 
Kii;il:iiid,  and  saih'd  frt)m  that  ])laee  on  thi.'  2lM  of  ^[areh,  1S(!l',  without 
any  .ittempt  at  her  detention  by  (Ireat  Uritain.  Slie  was  in  constrne- 
tion  and  outfit  evidently  a(h»i)ted  to  warlike  use. 

On  the  ISth  of  February  31r.  Adams,  in  behalf  of  the  Uidted  States, 
submitted  to  J'^arl  IJussell,  for  his  consideration,  "  the  eoi)y 
((fan  extract  of  a  letter,"  addresse«l  to  him  by  the  consul  of 
his  Government  at  Liv«'rpooI,  "^oin^jj  to  show,"  as  he  said,  "  the  i)r('i)a 
ration  at  that  port  of  an  armed  steamer,  evidently  intended  tor  hostile 
<>l)erations  on  the  oceaji."  ' 

This  communication  from  Mr.  Adams  was,  on  the  next  day,  referred 
)»y  ICarl  I'ussell  to  the  ijtutls  Commissioners  of  the Ti'casury  A,„„„nfH.rM 
that  Iteinji'  the  approjiriate  departnuuit  of  Jler  Majesty's  j'  '^^  «■■>'•"" - 
(lovernnu'iit  for  such  reference.-'  Thisdejiartment  at  once  called  ui)on 
the  Collector  of  Customs  at  laxcrpool  for  information,  and  by  his  direc- 
tion the  vessel  was  inspected  I»y  a  .uovernment  inspector,  who,  on  the 
L'lst  yt\'  I'ebruary,  rejxutecl  that  she  was  '-a  splen<lid  steamer,  suitable 
for  a  dis]>at(:h-boat,  i>ierced  for  j;uns,  but  has  not  any  on  board,  nor  are 
there  any  <;un-carria;4»'s,"'  The  Iniildeis  were  NN'.  C'.  3Iiller  «.V:  Sons,  one 
of  the  firm  bi'in^u'  a  pjvernment  olliccr,  ••  the  ('hief  Surveyor  ofTonnajie" 
at  that  port.^ 

'I'liis  lirni,  on  beinu  ajtplied  to  by  the  collector  for  inforn:ation,  said, 
"AVe  ha\e  Iniilt  the  dispatch-v*'ssi'l  Oreto.     *     *     *     She  is  ]»icrced  tor 
[four  ^-luis.     *     *      *      She  is  in  no  way  fitted  for  the  reception  of  jiuns 
[as  yet:  nor  do  \v«'  know  that  she  is  to  have  j;uns  whilst  in  lOnyland." 

On  the  same  day  these  reports  of  the  Surveyor  ami  buihU'rs  were 
ltransniitt«'d  by  the  Colle(!torto  the  Commissioners  ofCnstoms,  with  the 
Statement  that  "the  vessel  is  correctly  described"  in  the  note  of  the 
bniltlers." 

On  the  L'lM  of  February,  the  Commissioners  of  Customs  reported  to  tlu' 
Lends  CommissioiM'rsof  the  Treasury  that  '•  theOrcto  is  i>ier«'ed  for  lour 
guns:  but  she  has  as  yet  taken  notiiin,i;'  on  board  but  coals  and  ballast. 
She  is  not.  at  present,  fitted  for  the  rece[>tion  of  j;uns,  nor  are  the  build- 
ers a\vai»'  that  slii'  is  to  be  supplied  with  tiuns  while  she  remains  in  this 


countiN 


loners  of 
smitted 


on  the 


Miitish  Case,  p.  ; 
lirit.  fast'.  |i.  f)!. 
Iliiil.,  11.  .".">. 
Ilii<l..  i>.  .M. 


Ihid. 

Ibid. 
Iliitl,  p, 


] 


58 


AKGIMKNT    OF    TlIK    rXlTKl)    STA  IKS. 


Slif   W)i«i    thnii   *-\ 
jfollv  u  iimtj-nl-v\.i 


2.Stli  of  April  .iiri\('(l   at   Xiissau,  in    tho   island  of   Now 
l*i(»vi(lenc(',one  of  the  JIahanias,  an<l  within  the  Jurisdiction 
of  Ifor  ^Majesty's  (lovcinniont.' 

On  the  l.'»tli  of  June,  while  still  at  Nassau,  she  was  visited  by  ('oni- 
niander  Jlickley  of  Jler  ^fajesty's  ship  (Jreyhound,  with  several  of  his 
oflicers.  'I'he  (captain  of  the  Oreto,  on  bein^'  inquired  of  Ity  Couiinander 
llickley,  in  the  jtreseneo  of  the  oflicers  of  the  llreyhou:id  and  thi'ce  oi 
her  own  "  whether  she  [the  Oreto]  Innl  left  Liverpool  fittecl  in  all  respects 
as  she  was  at  present,"  replied  •' Yes,  in  all  respects;"  anil  "that  no 
addition  or  alteration  had  been  made  whatever."-  Captain  Dnguid,  the 
master  of  the  Or<'to  himself,  on  his  examination  as  a  v  itness  before  the 
N'ico-Admiralty  Court  at  Xassauon  the-Nith  of -Inly,  three  months  after 
her  arrival,  testilicd  :  '"The  liftings  of  the  Oi'Cto  Irom  the  time  of  hei' 
tpiittin^'  Liverpool  up  to  the  i)resent  time  are  the  same,  with  the  excep- 
tion of  a  little  alteration  in  the  boats'  davits.  I'^our  of  them  were 
lengthened  two  feet.  That  is  the  only  alteration  since  she  left  Liver- 
l»ool."'    J)Uinyan,  the  chief  otlicer,  testified  to  the  same  etl'e(!t.' 

On  tlie  .'{Otli  of  ^Vpril,  only  two  days  after  her  arrival  at  Nassau,  she 
was  examinetl  by  Commander  .AlcKillop,  of  Her  .Alajesty'sship  Uidldo^i, 
then  the  senior  naval  olticer  in  command  at  that  station,  and  he,  on  the 
same  day,  reported  to  the  Secretary  of  the  Admiralty  that  "a  very  sus 
l)icious  steamer,  the  Oreto,  evi<lently  inten<led  for  a  gun-boat,  is  now  at 
the  ui)i>er  anchorafic  under  th(^  JOnj^lish  tiaji' ;  but  as  there  are  no  less 
than  three  car<;'oes  of  arms  an<l  ammunition,  <S:c.,  united  to  run  the 
blockade,  some  of  these  guns.  cS;e.,  would  turn  her  into  a  privateer  in  ;i 
few  hours."' 

On  the  28th  of  May  Commander  M(d\illoi>,  in  a  communication  to  the 
Governor  of  the  llahamas,  reported  her  as  "api)arently  titf  ing  and  pre 
l)aring;  for  a  vessel  of  wai'."''  And  again,  on  the  (Jth  of  .hme,  in  another 
connnunication  to  the  same  ollicer.  he  says,  "  1  have  visited  the  screw- 
steamer  Oreto,  and  examiiu'd  her.  She  is  fitted  in  every  >vay  Ibr  war 
purposes,  maga/ines,  shell-rooms,  and  other  fittings,  totally  at  variance 
with  the  character  of  a  merchant  vessel  *  *  *  The  captain  doe> 
not  deny  that  she  is  intende»l  tor  a  war-vessel."'  And  on  the  8th  of  tliv 
same  month,  in  a  letter  to  the  Colonial  Secr(.'tary, hesays,  "In  my  letter 
of  the  17th  instant  [ultimo  .'J  I  nmde  His  l^xcellency  aware  of  tlie  war 
like  character  of  that  vessel,  and  1  am  of  opinion  that  she  is  n(»t  calla- 
ble of  taking  in  any  cargo,  having  no  stowage." 

The  letter  of  the  17th  referred  to  is  not  produced,  but  <ui  the  b'lth  et 
June  Comumnder  llickley  (who  had  siu-cceded  <'ommander  3rcKillo]i 
in  command  at  the  station)  and  the  ]nincipal  oflicers  of  his  ship,  after 
having  visited  and  examined  the  vessel,  certified  to  the  CioveriKtr  that 
"the  Oreto  is  in  every  respe<*t  fitted  as  a  man  of  war,  on  the  iHinci]»lt 
of  the  dispatch  gun-vessels  in  Jler  Majesty's  naval  service.  That  she 
lias  a  crew  of  fifty  men,  and  is  cai)able  of  carrying  two  pivot  guns  amid 
ships  and  four  broadside  both  forward  and  aft, the  i>orts  b<'ing  madi^  td 
'ship  and  unship,'  port  bars,  breeching,  side  tackle,  bolts,  iVc. ;  that  slu 
has  shell-rooms,  a  maga/.ine  and  light  rooms,  ami  handing-scuttles  foi 
handing  powder  out  of  the  maga/ine,  as  fitted  in  the  naval  service,  and 


'  Urit.  Case.  \\\).  :>!*  fit  (il. 

•  Ibid.,  p.  (;:!. 

■'•  Brit.  App.,  vol.  i,  p.  4I>. 

^  Biit,  App.,  Coinitfir  Case,  vol.  v..  p.  .1'. 


Brit.  App.,  vol.  i,  p.  11. 

Jirit.  App.,  vol.  i,  p.  U). 

11)1(1.,  p. -.'(I. 

Iliid. 


i 


THE    I'LOKIl^A. 


50 


of    New 
ristlk-tioii 

by  Com- 
lal  of  his     » 
lunaiuler 

tliive  oi 
I  losjU'Cts 
•'  lli;it  Hi) 
iguitl.  tlif 
x'forc  thf 
iitlisiiftei 
me  (»f  lior 

luMii   were 
k'ft   Liver- 

rtssan.  slu- 
>  r.iiUtloji', 
he,  oil  the 
I  very  s>is 
,  is  now  at 
re  n<>  Ic^-^ 
o  run  tlio 
vatt'or  ill  ;i 

itioii  to  the 
«;■  aiitl  pi't' 
in  anotlu  1 
the  screw- 

ly  l(»r  war 
t  variaiKo 
>taiii  tloes 

8th  of  the 
n  my  letter 
tiie  war- 
s  not  capa- 

he  Kith  ot 
>[cKiUoi' 
sliip,  aft«'i 
ernor  that 
le  i)riiKMl»l« 
That  she 
guns  amiil 
J  made  td 
;  that  sill' 
senttU's  ft'i 
service,  aii<t 

1.  i.lTT'L 

l.i,  p.  U'. 


shot-hoxe.s  for  Armstroiifj  shot,  or  shot  simihir  to  them.  IJoiinil  tlie 
iipperdeck  she  has  tiveboats,  (I  sliouhl  say,)  a  ten-oared  entter,  an  eifiht- 
oared  cutter,  two  fjijus  and  a  Jolly-boat,  and  davits  for  hoistin;;  them  up; 
her  arcoiiimodation  being'  in  no  respect  dilVeient  from  her  similar  class 
(if  vessels  in  the  Koyal  S'aval  service.*"' 

Again  on  the  l."»tli  of  Jnne,  in  a  liirther  conimaiiicatioM  to  the  (iov- 
iiiior,  the  Commander  says  : 

'riicso  (■irciiinstjiiiccs,  licr  Iitti;;;-  dfti'iitioii  ill  tliis  jioil,  liiT  cliiuaitcr.  licr  litliims.  cimi- 
\  iiu-fd  lis  1  am  also  that  diiriin;  licr  stay  in  tlic  jiort  aiTaii,u<'iiii'iits  liaxii  hern  iiiadi'  tor 
iiiiiiiiji  lifv  oiilsidi',    "  lnT  fviilciit  f(iiii|iiiii'iit  lor  war  i>iiriMiscs,   "     '    and  my  coii- 

\  ictioii.  as  also  tliat  of  my  olliccrs  and  men  that  liavi'  lifcn  on  board  id'  her,  t liat  she  is 
liiiilt  intently  iov  a  war-Vfssd  and  not  tor  a  nicrcliant  slii|(,  maUc  it  iiiciimliciit  on  un- 
ioM'i/c  till'  Ort'lo  as  a  vissd  tl:at  can  lie  no  moii'  consiihTcd  as  a  tVcc-t ladi  r,  hiit  that 
>lic  i>,  oil  the  contrary,  calciilati'd  to  !»■  tnnicd  iiiln  a  I'oriiiidahh!  vessel  of  war  in  tweiity- 
luiir  liotns:  ai"'  that  this  I  am  eonvineed  will  lie  the  case  if  she  is  )iennitted  to  leave 
Nassau.  And,  therefore,  in  her  picscut  state,  a  \  issei  under  I'.i  itish  c(dors.  sailing;  from 
hiiice  in  such  an  e(|nii>iied  slate  to  a  professional  e.xc.  that,  I  consider  it  would  he  a 
i!ii\viiri;;lit  iiejilect  of  duty  on  my  (lart  to  |>eniiit  her  |iroceedini^  to  sea,  without  a,.:;ain 
iiru'iii;^  most  stromjly  on  your  lv\ee!lency  the  e\|iediency  ot"  taking;  charije  ot' her.  as  an 
iiienally  eiiuipiied  Hritish  vessid.  si.s  in  my  ]iioles>ioiial  ca[>aeity,  as  also  in  the  oiiiiiion 
..I' my  otticeis,  it  is  im[ios-;ilde  to  con-ider  her  as  any  other,  she  Iiein;^  a  li'uni  Jidr  vessel 
nt  war  on  our  royal  naval  jirinciide.  ■ 

And  still  again  on  the  lOth,  in   another  comnmnication   to  the  (io\ 
ciiior,  he  says: 

<  )n  the  Oreto  I  have  reix'ated  my  ])ridessioii;il  oiiinion,  as  also  that  td"  my  oftieers, 
•  iiid  I  still  have  to  exjiress  my  conviction  that  she  is  a  \ cssel  ol'  war  that  can  he  eiiiiip- 
jied  ill  twenty-four  hours  for  hattle,  ami  that  slie  is  now  n'oiiij^  out  of  the  harlioras 
maily  ei|iiii>[)ed  as  a  \essel  of  war  can  lie  without  j;uns,  arms,  and  ammunition.' 

This  evidence  is  taken,  as  the  arbitrators  will  notice,  exclusively 
trom  that  furnished  by  iler  .Majesty's  (loveriiiiient  in  its  Case,  Counter 
Case,  and  accompanying  documents:  and  the  United  States  submit,  it 
shows,  beyond  any  eontroversy.  that  on  the  18tli  of  J'ebruary,  the  date 
n['  3Ir.  Adams's  communication  to  I'^arl  Wussell,  the  Oreto  was  a  ves.sel 
sjiecially  adapted  to  warlike  use  :  that  this  fact  was  ai>parent  upon  an 
iiis[)ecti()ii  of  the  ves.sel  her.self;  that  she  had  been  constructed  and  so 
••specially  adapted"  within  tin;  Jurisdiction  of  Her  3Iajesty's  (lovern- 
ment.  iind  tliat  she  still  remained  in  that  Jurisdieti(Ui. 

Sht»  w;is  intended  to  cruise  or  carry  on  war  iigainst  the  Cuited  States, 
and  Her  .Majesty's  Ciovernment  had  reasonable  grounds  so  to  believe. 

Mr.  Adams,  with  his  eominunicati(tu  to  I'arl  liussell  on  the 
bsth  of  February,  submitted  an  extract  from  a  letter  of  <  ii,r„i.,  .,i  ir 
,  tlie  Consul  of  the  Cnited  States  at  Liverpool,  in  which  it  is  ,^;„;"'  ■^•'"•-"" 
said  :  "  Mr.  ]\liller,  who  built  the  hull,  says  lie  was  employed  by  Faw- 
cett,  I'restoii  ^S:  Co.,  and  that  tiiey  own  tiie  vessel.  *  *  Fra/.er,  Treii- 
holm  vK:  Co.  have  made  a*lvanees  to  Fawcett.  I'resttui  cS:  Co.,  and  .Miller, 
the  buihU'r." '  And  .Mr.  Adams  in  his  note  to  Karl  Jfussell  .says,  "  From 
the  evidence  furni.shed  in  the  names  o\'  the  persons  stated  to  be  concerned 
in  her  construction  and  outfit,  I  entertain  little  d(mbt  that  the  intention 
is  preci.sely  that  indicated  in  the  letterof  the  Consul,  tiie  carrying  on  war 
against  the  United  States.  *  *  Should  further  evidence  to  "sustain  the 
allegatioii.s  respecting  the  Oreto  be  held  necessary  to  effect  the  obje(;t 
of  securing  the  interpo.sition  of  irer3Iajesty"s(iovernmeiit,  I  will  niake 
an  ertortto  procure  it  in  a  more  formal  manner."' 

This  eoinmunicatioii  was  not  accompanied  by  any  evidence  that  could 


^  I: 

t  s '  1 


I 


}  It 


'  Uiit.  App.,  vol.  i.  p.  -j:!. 
■  JJrit.  App.,  vol.  i,  p.  ','4. 
'H»id.,p.^>tl. 


Urit.  Case,  p.  ">:?. 
Ibid. 


(JO 


AKUl'.MKM'    Ol'    Tin;    IMTKl)    STATKS. 


be  iiiiulc  iiviuliiblr,  in  tlir  roiirts  of  (Iroiit  llritiiiii.  It  wjis  what  it  jiui 
poitctl  to  be,  ii  men'  "  statomoiit  of  bcbrf."  It  I'iiirl  IviisscU  dcsiird 
t'lirtUrr  cvitlciice  to  be  ('iiniislM'd  l)y  tii(^  riiitctl  States,  \w  was  invited 
s(>  to  say  in  reply.  He  did  not,  but  in  his  reply  on  the  l!>tli  contented 
iiiinseir  with  aeknowled<;in,in'  tin'  I'eeeijit  of  the  eoniniunieation,  and 
statin;;"  that  he  had  "lost  no  time  in  eoniinnnicatin,i;' with  the  propei 
(leparhnent  of  ller  Majesty's  (iovernnient  on  this  subject."' 

Uii  the  L'ist  of  February  the  biiihU'rs  reported  to  the  Collector  at  liiv 
\,t,.,n..f.i.  II,,.  erpool,"  We  have  built  the  disj)ateli  vessel  for  Messrs.  I'aw- 
.:■,„,,„„.,,.  vv{{^  I'n'ston  »S:  Co.,  en;4ineers  of  this  town,  who  are  tlii" 
ajjents  of  Messrs.  Thomas  IJrothers,  of  I'aleiino,  for  whose  use  the 
\essel,  we  umlerstand,  has  been  built.  *  *  Mr.  Thomas,  of  the  lirni  at 
Palermo,  frecpUMitly  visited  the  ship  while  she  was  bein;;' built.  *  *  AVc 
have  hamled  her  over  to  the  engineers,  and  have  been  )>ai<l  lor  her. 
Accor«lin,u'  to  the  best  of  my  information  the  present  destination  of  the 
vessel  is  i'alermo;  and  we  have  been  asked  to  recommend  a  blaster  to 
take  lier  out  to  ralermo."' 

Thns  one  of  the  lirms  suspected  by  ^Fr.  Adaius  is  shown,  by  the 
statement  of  the  builders,  to  have  been  concerned  in  her  ccuistruction 
and  outlit.  On  the  same  day,  the  collector  transmitted  this  communi- 
cation from  the  builders  totlu'  Commissioners  of  Customs,  with  Ji  fur 
rher  statement  of  bis  own,  viz:  "  J  have  every  reason  to  believe  that 
she  is  for  the  Italian  (Iovernnient,  and  not  for  the  Confederates.'' ' 

lie  j-ave  uo  facts  upon  which  he  predicated  his  belief,  and  it  will  be 
noticed  that  there  is  nothinj;  in  the  builders'  statement  to  justify  such 
a  belief.  All  the  builders  state  is  that  they  understood  she  was  built 
for  the  ''use  of"  a  firm  in  Palernu),  and  '  it,  accord  in  <;•  to  the  best 
of  their  information,  her  ])resent  destinauon  Avas  Palermo.  Faw- 
cett,  Preston  and  Com])any  were  at  the  time  "a  firm  of  engineers  and 
founders,"  '•'•carryiii;';'  on  an  extensive  trade"  at  Jiiverpool,'  but  no 
inquiries  ajipear  to  have  been  addressed  to  them.  They  were,  as  the 
builders  said,  the  "agents"  of  the  lirm  tor  whose  '•  use"  they  "under 
stood"  the  vessel  was  built,  and  were  certaiidy  likely  to  know  for  whose 
"  use  ■"  she  urtuulbj  was  built.  It  had  already  been  uryed  against  this 
wimt  nns!,:  1,,^ .  ^biu  "  tluit  tlu'y  had  l)een  concerned  in  a  shipment  of  arms 
i..t.u>u.m.  j^^j.  j^^^j^,  (joi,f(>,]erate  States."'    There  <loes  ii(»t  seem  to  have 

been  any  jjood  reason  why  Jler  ^Majesty's  (iovernnient  mi.uht  not  have 
addressed  an  impiiry  to  them,  yet  I'or  some  reason  it  did  not,  or,  if  it 
did,  the  result'  has  nt)t  been  reported. 

()n  the  I'l'd  of  February,  the  Commissioners  of  Customs  reported  to 
the  Jjords  Commissioners  of  the  Treasury  that  they  had  instructed  the 
"Collector  at  Liverpool  to  make  in<iuiries  in  regard  to  the 
vessel  Oreto.  and  it  api)ears  Irom  his  report  tliat  she  has 
been  built  by  31essrs.  ]\Iiller  ^S:  Sons  for  ^Messrs.  Fawcett,  Preston  iV 
Co.,  en^<;ineers  of  Jiiverpool,  and  is  intended  lor  the  use  of  Messrs. 
Thomas  Jlrothers.  of  Falermo,  one  of  that  firm  haviui;'  frequently  vis- 
ited the  vessel  during'  the  jirocess  of  buibling.  The  Oreto  is  pierced 
for  four  uuns.  *  *  The  expense  of  her  construction  has  been  paid,  and 
she  has  l»een  handed  over  to  ^lessis.  Fawcett  and  J'reston.  ]\[essrs. 
]\[iller  &  Sons  state  their  belief  that  her  ilestination  is  Palermo,  as  the\ 
have  been  reciuested  to  recounuend  a  master  to  take  her  to  that  port : 


Wlutiitti.allv 


'  Hrit.  App..  vol.  i,  p.  'J. 

•'  I'.rit.  Case,  p.  .'.1. 

"Ibid. 

■•  Hrit.  Case,  j).  .'m  ;  ]5ril.  (.'oiiiitur  Case,  p.  T.", 

■'  Brit.  Counter  Case,  p.  Tfj. 


Tin;    FLolMKA. 


(il 


it  \n\\ 
«U'sin><l 

invited 
nt(Mito«l 
on,  and 
L>  propoi 

r  at  I^iv 
irs.  l-'aw- 

aro  the 

use  lilt' 
1  lirni  at 

*  *  AVe 
I  lor  lior. 
on  of  tli«' 
lastor  to 

1,  by  the 
istiuction 
'onnnuni- 
til  a  fur 
lieve  that 

OS.'"'' 

it  will  lu" 
stify  such 
was  built 
the  best 
10.     Vaw 
neers  and 
'  but  no 
I'e,  as  the 
"  under 
or  whose 
linst  this 
of  arms 
to  haw 
m)t  have 
t,  or,  if  it 

)orte(l  to 
ueted  the 
:d  to  the 
t  she  has 
•rostou  iV 
)f  Messrs. 
lently  vis- 
is  pierced 
paid,  and 
:Messrs. 
10,  as  the.\ 
hat  port: 


iuul  oiir  rolle<'tor  at  liiverpool  states  that  he  has  oveiy  reason  ti>  l>elievo 
that  the  vessel  is  for  tiie  Italian  (lovernnient.  We  be;;'  further  to  a«hl, 
that  speeial  directions  hav(^  been  j;iv«'n  to  the  ollicers  at  liiverpool  to 
watch  the  movements  of  the  vessel,  and  that  we  will  not  fail  to  lepcnt 
forthwith  any  circnmstanei!  which  may  occur  worthy  of  y»»ur  f.ordship's 
to;;ni/.anee."' 

It  will  be  here  observed,  that  the  report  does  no\  state  it  was  only  uii 
dt-rstood  by  Miller  t\:  Sons  that  the  vessel  was  intended  for  the  use  of 
Thomas  IJrothers,  but  it  apiteared  from  the  repoit  that  she  was  so  in- 
tended. Nt'itlier  does  it  appear  that  inrpiiiies  had  not  been  adtlressed 
to  I''awe«'tt,  Preston  «.\:  ('i>. ;  Imt  it  did  appear  that  "special  directions" 
had  been  ^^iven  to  the  ollicers  at  Ia\eri)ool  to  watch  the  movements  of 
the  vessel,  and  that  ])rompt  report  woidd  be  made  whenever  circum- 
stances worthy  of  their  Lordships'  co^iui/ance  mi;;ht  occur. 

This  report  was  transmitted  l»y  the  Secretary  of  the  Treasury  to  Marl 
K'ussi'JI  on  the  L'lth  ;  -  ami  i»y  ICarl    IJussell   to  Mr.  Adams  on  the  iMIth 
of  February.      The  statemeids  of  the  ollicers  and   builders  on  which 
the  report  was  i)redicatetl  were  not  sent  with  it.     JOarl  Ifussell  in  trans- 
mitting' the  report  did  not  intimate  any  desire  that  3Ir.  Adams  shoidtl 
make  an  ell'ort  to  procure  further  evidence.'     Hut  on  the  same  day  of 
!  its  tlate  he  (I'.arl  llussell)  telegraphed  to  II er  Majesty's  .Minister  at  Turin 
f  as  follows:  "Ascertain   and  report  to  me  whether  a  vessel  called  the 
'  Oreto,  now  littinj;  out  at  Liverpool,  is  intemled  for  the  use  of  the  Ital- 
ian Government."  ^     On  the  1st  of  .March  the  Minister  at  Turin  I'eplied: 
"liicasoli  tells  me  that  he  has  no  knowletljie  whatever   of  tin;  shij* 
Oreto,  but  will  cause  in<[uiry  to  lie  made,""     No  int|uiri<'s  appear  to 
have  been  addressed  tt)  tlu'  rei»resentative  of  His  ^lajesty,  the  Kin,^'  of 
Italy,  in  London,  or  to  hisconsid  at  Liverjxtol,  ami  no  further  informa- 
tion was  receiveil  from  the  Minister  at  Turin  until  after  the  vessel  had 
sailed. 

On  the  1st  of  March,  the  same  day  with  the  receipt  of  the  reply  fnun 

the  ^Minister  at  Turin,  John  11.  Thomas,  of  Liverpool,  "  a  natural-born 

Lritish  subject,  born  at  I'alermo,  in  the  island  of  Sicily,  of  Jlritish  pa- 

|rents,"  declared  in  writing  in  the  i»reseiice  of  the  Kej;istrar  of  Shipi>in,t: 

iat  the  ]H>rt  of  Liverpool  (one  of  the  ollicers  of  the  Ciovernment  specially 

|char<;ed  with  the  rejjistry  of  vessels')  that  he  was  "entitled  to  be  rey- 

|istered  as  owner  of  sixty-four  shares  (the  whole)  of  said  ship.     To  the 

'■best  of  jny  knowledge  and  belief,  no  person  or  botly  of  persons  other 

Jban  such  persons  or  bodies  of  jiersons  as  are  by  the  ^Merchant  Shipi)ing 

?Act,  1854,  (jualitied  to  be  owners  of  Ibitish  shii»s,  is  entitled  as  owner 

to  aiiy  interest  whatever,  either  legal  or  benelicial,'iii  the  said  ship."  ' 

This  declaration  was  made  in  accordance  with  the  jirovisions  of  sec- 
tion 38of  the  Merchant  Shipping  Act,  lsr)4,of  (ireat  liritain,''     „..,.vv  .,    i,. 
to  obtain  the  registry  of  the  ship  as  a  lUitish  vessel.  ^Vith-  ^  '  ' 
out  it  theliegistry  eoidd  not  have  been  granted,  for  none  but  natural- 
born  Uritish  sidijects  and  persons  made  (hmi/.ens  by  letters  of  deniza- 
tion, or  naturalized,  could  be  owners  of  a  JJritish  ship. '" 


'  15rit.l'asiM..r,|. 

'  Iltid..  II.  .v.. 

••JWit.  App.,  vol.  i,  p.  n. 

■'Itrit.  Aji]).,  vol.  i,  p.  :{. 

''  Ihit.  (.'iif^e.  ]».  iV). 

'  Mcichaiit  Shii)]iinj;  Act,  1854. 

>*  Brit.  Ca.se,  ji.  .">(). 

■'  Am.  Ajtp.  Counter  Ca.se,  p.  IIIW. 

'"Mer.  ti\nl^.  Act,  18o4,  sec.  Ifcf ;  App.  Aui.  Counter  Case,  p.  1132. 


62 


AUCa'MKXT    (M'    TIIK    IMTKI)    STATKS. 


Tpoii  this  (Iccliiiiitioii  tlic  vj'sscl  wiis,  on  tin'  Dd  of  ^r;ircli,  iryistt'icd 
iis  ii  Uritish  vrsscl,  ;it:  the  port  of  Iiivi.'i[)ool,  iiinlci"  Mm-  ii;iiii(>  of  tlio 
Oroto.'  This  iN-jiistry  was  iiiiido  in  one  of  tlio  ))nl>li<!  rt'<'onls,  by  jn 
(tllicor  of  lilt'  (lovcrmnont  specially  <'liar;i<'(l  with  that  diity.- 

On  the  Ith  of  March  the  Orcto  was  cleared  at   LiNerpooi  in  ballast. 

with  a  Clew  of  lifly-two  men,  for  J'ahMino  and  .lainaica. 

This  clearance  must  IiaNC  Iummi  obtained  troni  the  (>lli<'e  ol 

tlip  Collector  of  Cnstonis  at  hiverpool.'     'I'o  be  re;4idar  it  slionid  have 

been  si;;ned  by  the  Collector  or  Coni|»troller,''  bat  that  formality  seeni>. 

in  this  i)articnlar  instance,  to  have  Ix'en  omitted.'' 

On  the  .")d  and  Ith  iif  March,  shippin^i' articles,  in  accor«lan<'e  with  the 
form  sanctioned  by  tin'  Hoard  of  Trade,  An;;nst,  iStiO,  in  pnrsnanc*'  of  17 
and  18  \'ictoria,  c.  KM,"  were  si<,nied  by  the  master  and  all  the  crew  who 
sailed  in  the  vessel,  e.\<'ept  two  who  sij;ned  as  substitntes  on  the  14tli 
an«l  loth,  in  jtri'senee  of  ,1.  \V.  Ilnyhes,  shij>pin<i'  master  at  the  port  ot 
Liveri)Ool.'  These  shii)pin;i'  articles  .speeilied  a  \()yaj;e  from  Liverpool 
to  I'aiermo,  thence  (if  reijnired)  to  any  port  or  ]>laees  in  the  Me«litor 
ranean  Sea  and  the  West  Indies,  and  back  to  a  linal  port  of  dis(diar;>t' 
in  the  United  Kinji<lom,  the,  term  not  to  exceed  six  months.  In  the 
same  artich's,  in  accordance  with  the  ])rescribed  form,  tlie  vessel  is 
described  as  havinjjf  l>een  rej;istered  at  tlie  port  of  Liverpool,  jNIarch  .'!. 
lS(n  ;  and  Fawcett,  Trestou  »-^  Co.  are  named  as  ''manafiiny  owners." 
Shipping'  articles,  by  the  terms  of  the  "  Merchant  >Shii)pin«;'  Act,  18.')4." 
are  re<juiied  to  be  si<>iied  in  «liiplieate  in  the  jnesenee  of  the  shippiiiu 
master,  Avhose  dnty  it  is  to  "  cause  the  a^ioement  to  be  read  over  and 
explained  to  each  seaman,  or  otherwise  ascertain  that  each  seaman 
understands  the  same  betbre  he  sij^ns  it,  and  to  attest  each  signature." 
One  ])art  of  tlie  articles,  thu.s  in  dnplieate,  must  be  retained  by  the  ship 
])injj  master,  who  is  an  ollieer  of  the  (lovernment,  auil  who  has  a  public 
oflice,  known  as  the  ''  shippiuf*'  olliee."" 

All  this  foiinality  was  ftone  throu;»h  Avith  in  this  case,  as  will  be  seen 
by  a  copy  ot  the  aiticles  actually  sij>ned  in  the  '-shipping-  oIlitMi"  and 
before  a  "shipi)ini;-  master,"'  found  in  the  Appeiulix  to  lljellritish  Case. 
vol.  i,  p.  1()1. 

Thus  then  stood  the  facts  known  to  Her  ^Majesty's  (iovernnu'iitpu  tlif 
1th  of  IMareh,  eijihteen  days  before  the  Oreto  sailed.  She 
was  desifiued  for  war  i)urposes.  That  was  evident.  Slit 
was  for  the  use  of  some  .government,  though  ref^isteved  in  the  name  el 
a  IJritish  subject.  Slie  did  not  belong  to  Jler  3LiJesty's  (Jovernment, 
an<l  it  was  not  "believed"  or  "suspected''  that  she  belonged  to  or  ■NVii«' 
intended  lor  any  other  CovernnuMit  than  thatof  Italy  or  the  insurgents, 

There  were  certainly  cir<'umstauees  of  stiong  suspieiou  against  lici 
Italian  ownership  or  <lestination.  !Mr.  Adams  based  his  opiniou  of  lici 
destination  to  the  confederates  directly  upon  the  fact  that  he  xuulerstood 
Fawcett,  Preston  »S:  Co.  and  Frazer,  Trenholm  «&  Co.  had  been  con 
cerneil  in  her  construction  and  outiit.    This  last  tirni,  he  informed  Ear! 


'  ISrit.  Alt]).,  vol.  i,  jt.  10. 

-' MiT.  Sliip.  Act.  lHr)4,  sec.  \'2  ;  Am.  Aju*.  Counter  Case,  jt.  1U1. 

■'  iJiit.  ("iisc,  p.  ;"»(!. 


'  IJrit.  ('use,  p.   57;  Customs  C'on.soliilatioii  Act,   K)l>,  sec.  14vi;  App.  Am.   Count' 
Case,  p.  IKi;?. 

■'  See  see.  I4'i  alxtve. 

'•  Hiit.  Case,  ]>.  .")»). 

'Mer.  Shi)).  At't,  1854,  sec.  ?*. 

MJiit.  App.,  vol.  i,  p.  1(51. 

■'IJrit.  Apj».,  vol.  i,  p.  Kil. 

'"Mer.  Sliip.  Act,  sec.  15(1;  App.  Am.  Counter  Case,  p.  ll.^.'S. 

"  Ibid.,  sec.  l'^2;  App.  Am.  Counter  Case,  p.  1151. 


t 


.l:i 


Tin:  I'l.oh'ihA. 


i'u\ 


>};istoll'il 
(»    (»f  till' 

Is,  l»y  i>;i 

I  hiillasl. 
liiniaicii. 

iild  hiivf 
ty  st't'iii^. 

with  the 
uic'c  of  IT 
ert'W  who 

thi'  14tli 
K>  port  «>t 
Liverpool 
)  INleditev 
(lischarj-v 
^.     In  the 

V08St'l    i> 

,  ;Miircli  .">. 
>•  owners." 

Vet,  isrA: 

l'  shipping 

II  over  and 
cli  seaman 
«>natnre." 
y  the  ship- 
lis  a  publii 

^ill  be  seen 
jtlieo"  aiul 
itish  Case. 

iientpn  the 

liled.     Shi' 

(lent.     She 

10  name  (»i 

ivernmcnt. 

to  or  -Nv;!-" 

nsnrgents 

o'ainst  he! 

lion  of  hoi 

understooil 

been  eon 

trmed  Eiu' 


Am.   Count' 


h'lissell  as  early  as  tiie  I."»jh  of  Anjiust.  isdl,  was  "well  knttwn  to  con- 
sist ill  part  of  Aiiierieans  ill  sympatliy  with  the  iiisnriu'eiits  of  the  I'nited 
States."'  ill  point  ol'  fact,  only  one  ol'  the  partners  resided  in  Iii\ei- 
|)ool,  and  he  was  a  native  of  South  ('arolina,  who,  on  the  loth  of  .Iniie, 
JSi;;;,  iipplled  to  Her  .Majesty's  ;>(n  ('iiiueiit  for  a  eerlifieate  of  nalnrali 
/atioii.'  The  other  members  of  the  I  iin  were  at  tin'  time  actual  resi- 
dents (»f  the  Stale  of  Soiilli  Carolina.  Omt  (»f  them,  afterward  the 
Secretary  of  the  Treasnry  of  the  insur^j^t'iils,  was,  on  the  ."ith  of  Anjjnst, 
l.stil.  (as  a|(p<'ars  by  the  public  records  in  the  ollice  of  the  Ke^istrar  ol 
Shipiniii"  at  Liverpool,)  authorized  by  a  '"certilicate  of  sale,"  from  liei 
owiiei-  ill  Liverpool,  to  sell  the  ship  Uerinuda  at  any  i)lace  out  of  the 
liiitcd  Kiiiydoiii.  This  certilicate  of  sale  al.so  «le.scribed  him  as  ''of 
Charleston,  in  the  Stale  of  Sonlh  Carolina,"' one  of  the  i)orts  at  the  time 
closed  by  the  blockade  of  the  Ciiited  Stales.'  It  was  npoii  the  occasion 
of  a  coiiiidaint  l>y  ."Mr.  Adams  as  to  this  very  vessel  that  he  communi- 
cated to  I'.arl  Itns.sell  the  relations  of  this  linn  with  the  insnr;.i('iits. 

The  liiiilders  stated  that  l''awcett,  I'reston  «S:  Co.  e«nitra<'ted  with  them 
lor  llie  biiildiii;,',  and  the  records  showed  that  they  were  the  "mana<;iiiji' 
(»wiiers,"  direct iiij;"  tlu^  prejiarations  I'or  her  <lepartnr«'  after  -Mi'.  Adams's 
com])laiiits  had  been  made  known.  Xo  inquiry  lia<l  been  ma<leof  them. 
Mr.  Adams  stated  sIm^  had  been  paid  for  by  l-'razer,  Treiiholin  «S:  Co. 
Her  builders  stated  they  ha<l  been  paid,  bnt  omitted  to  say  by  whom. 

Ill  fact  no  impiiry  sug-Ljested  by  .Mr.  Adams  hatl  been  made,  and, 
idthoiijih  he  had  been  assnred  that  the  movements  of  the  vessel  "'should 
be  watched,"  no  single  thin;;'  appears  to  have  been  done  by  any  ollicer 
(»f  the  (ioveriimcnt  at  the  port  of  Liverpool  after  the  reports  of  the  21st 
<.f  Fcl)riiary,  or  at  London  after  the  tele<;ram  of  ICarl  Jiiissell  to  the 
^Minister  at  Turin  on  thelMith,  until  the  vessel  ha»l  been  permitted  to  sail 
under  a  clearance  jiianted  in  the  face  of  so  many  attending eirenmstanees 
of  suspicion. 

On  pane  -m  of  the  Ilritish  Case,  after  a  re('ai)itnlation  of  the  facts  which 
had  been  developed  up  to  tln^  1st  of  .ALindi,  it  is  .said,  '"No  further  infor 
Illation  could  beobtaine<l  by  .Mr.  Adams  or  wasreci'ived  by  Her  Maje.sty's 
(loxeniment  np  to  the  time  of  the  sailiii";'  of  the  ship.''  Mr.  .Vdamshad 
not  been  called  upon  to  act  furl  her,  and  he  had  been  a.ssured  that  "special 
directions  had  been  •••iven  to  tln'ollicers  at  Jiiveri»ool  to  watch  the  move- 
ments of  the  vessel." 

It  may  be  literally  true  that  no  other  information  had  been  received 
by  Jler  Majesty's  (lovernment.  The  otlicers  at  liiverpool  n,.„i .,.,„.. ,„ii,„ 
seem  to  have  taken  their  "s]>eeial  directions"  literally,  and  ■-i"*"'-'- 
watched  only  the  "movements  of  the  vessel,'' but  the  United  States 
submits  that  if  Her  ]\rajesty's  (lovernment  did  not  receive  ftirtlu'r  infor- 
mation, it  was  be(;an.se  it  failed  to  use  the  means  within  its  power  to 
hccome  better  informed.     It  had  been  put  niion  iiniuirv,  and  was  neiili- 


.ui'iit  if  it  did  not  act. 

NN'hat  mifjht  it  have  done  .'  On  Hie  .">d  oi'  ^lan.'h  the  vessel  became  a 
•■  rej-istered  Jbitish  ves.sel,"  an*!  subject  to  the  laws  in  force  in  the  kinij- 
<l<)m  for  the  pnernment  and  (lontrol  of  such  ves.sel s.  Her  ostenaibh' 
owner  was  a  Ilriti.sh  subject  residing  at  J^iverpool.  Jler  "nnmaginjj 
owners  "were  "  a  linn  carrying  on  an  extensive  trade  at  Liverpool."' 
l-'razer,  Trenholm  .S:  Co.  had  a  business  otlice  at  Li\  erpool,  and  at  least 
one  of  the  partners  (Priolean)  resided  there.-' 

'  Urit.  Apj).,  vol.  ii,  p.  l',\:\. 

*  Itrit.  App.,  vol.  V,  p.  '2i)2. 
'  Brit.  App.,  vol.  ii,  p.  l:it!. 

*  iJrit.  Case,  p.  75. 
'•  Brit.  App.,  vol.  V,  p.  tJO'>. 


k- 


5SF" 


*■•■ 


64 


AK(;iMi:\T  OF  Tin:  imted  ^tatks. 


I ti  iU>uf 

tiifriluiti*' 


( 


Th«' Morcliant  ^liippiiiu'  Act,  IS."  I,  uiuhm-  which  the  vessel  wns  rcj^is 
uhM„n,iii„.  tcrct'i,  iuu\  i  h-(l'  tli.u  '•  if  any  iiiKiiialiticd  iicrsoii  *  *  ac 
''It.VnK  •i'^'''*'^^  •'•'^  't""!!*'!'.  any  int«'ivst,  either  h'.nal  or  bein'tu-ial,  in 
a  shipusiuji  a  Uiiti.sh  thii^and  assuniiiiji  the  lljitisii  cliaiacter. 
such  interest  sliall  he  luvleited  lo  Her  3IaJest\."  an<t  ••ilany  ;>ersi»n  on 
liehall'ol"  himself  (»r  any  other  lun'soii  or  hotly  of  pei'sons,  wilfully  makes 
a  false  (h'ehirat'on  touciiinu  the  (jualilieat ion  of  himself  or  sn<'h  other 
person  or  inMiy  of  persons  to  own  British  sjiips.  or  any  shares  tiierein. 
the  deehinuit  shall  he  quills  of  a  misdemeanor,  an<l  the  ship  or  share  in 
respect  of  which  such  declaration  is  made,  if  the  same  has  not  I>eeii  for- 
teited  under  the  foreu(iin;u  pro\  ision,  shall,  to  tiie  i-xtent  of  tin*  interest 
therein  of  the  person  maUin.n'  the  (h-elaratiou,  *  *  be  forl'eited  to  Her 
>!ajesty."" 

The  same  A'i  '  |>rovid<  .^  that  ••  the  lloai'd  of  Tiade"  lone  of  the  depurt 
merits (d"  Mer  Majesty's  (iovermuen' )  ■  may,  from  time  to  timi',  whenever 
it  seem;- e\|)edient  Jo  them  so  to  do,  appoint  any  )»er.son  as  an  inspector. 
To  report  to  them  upon  the  following; matter,  ti)at  is  to  say  :   *     *     * 

"!'.  Wheiher  ihe  pio\isions  of  this  Act  or  any  reunlations  made  undci 
or  by  virtue  ol"  tiiis  Act  ha\e  Ikmmi  complied  w  ith,"  Ami  l>v  si-ction  1."). 
•• 'Very  such  inspector  as  afores.iid  shall  ha\e  liie  followinu;  pi'wers. 
tlmt  is  to  say:  "^  '  "  *  * 

".■>,  lie  may.  by  ^^nminons  under  his  hand,  reipui''  the  attendance  of 
all  such  pi-rsons  as  bethinks  til  ioeall  before  him  and  e\.  unine  for  such 
purpo>c.  and  iia\  riM|uire  answers  ^n■  returns  to  a:iy  ini(uiries  he  tliink> 
lit  t«»  make. 

••  I.  lie  nia>  reipiire  ami  enforcv  the  prodnction  of  all  books,  papeis. 
ol  dotaiaient.-.  which  he  .'(msidcrs  important  foi'  such  purpose. 

*•.">.  lie  may  adndniter  oaths,  nr  nr,i,\.  in  lieu  ol'  recpiiriuL^ or  adnnir 
isterin^-  an  oath.  I'eipiii'e  everv  person  evamimsl  by  him  to  malie  and 
subscrilte  a  declaration  of  the  truih  of  the  s'.atements  made  by  iiim  in 
his  exaudnaiiou."  ' 

This  was  machinery  in  !  he  hands  and  \inder  the  control  ot"  Ihe  otlieer> 
t>f  Her  Maj;'sty"s  (io\('r!iment.  It  cord. I  n<it  l»e  maaa,u<'d  or  eontr(»lled 
by  any  of  the  oiMcers  of  the  (lovernnu'iit  of  the  Tnited  Slates.  Here 
e«'riaiul>  were  circumslances  biouiihl  lo  the  knowled,ij;<'  of  the  olhcers 
of  lie'.'  .Majesty  sulheieut  to  create  at  least  a  stron;j  suspicion  that  sonic 
of  the  iU'ovisit)iis  ol'  the  .Merchant  Shippinj«'  Act  had  been  violated,  an<l 
an  inspeetoi  mi>;ht  with  luopriety  have  been  apiKiinted  iiiid  an  intjuiry 
instituted  by  him. 

The  b'lilders,  Faweett,  Pieston  «S:  Co..  l-'ra/ei-,  Trenholm  »S:  Co..  and 
Tlnnnas,  if  necessaix.  mi>;lit  ha\e  been  called  to  j;i\e  InformatitUi  ;  and. 
if  called  I'lioleau  (one  ol  the  linn  of  Trazer,  Trenholm  vS;  Co.)  would 
Jiavo  been  compelled  to  state,  as  he  did  subsetpieiilly  state  umler  oath, 
that  tie  contv;!:-t  for  the  building- was  made  with  I'av.cett,  Trest**!' \ 
Co.  by  danu's  J>,  ItuUoek,  v.  ..  actid  in  i'^n^',iand  as  tlu'  ''a;4eni  oi  the 
2Savy  Department  "  of  the  i!unir;,:ents;  and  that  she  Mas  i)aid  for  throu;:ii 
Frazer,  Tr»'nholm  ».V  Co.,  who  Vi<'re  at  tlii'  time  the  '"linaiieial  a;;<Mits" 
of  tlie  insurgents  in  Liveri'<)(»l.  He  would  also  undoubtedly  haxc  been 
»-<uiii)elled  to  state  (as  <lid  .Mr.  (ieor-ie  J>.  Jlarris,  of  t'-e  tirm  of  II. 
.vd(h'r!y  «.\:  Co.,  afterwaitl  on  the  trial  before  tlie  \'ice-Ad'niralty  Com' 
at  Nassau)  thai   his  linn  at  Liverpool  consigned  her,  on  Iter  departure 


I  Sec.  l(i;t,  sill.,  '.i,  1:  Ain),  Am.  ('.  Cas.v 
•'Set'.)):  Aiii.C.  CiiM-.  A|>ii.,  ll'JT. 
'S<c.  U:  Atii,  ('.  Ca^.'.  A). p.,  ll'Jlt. 
'  8('c.  14;   Am.  ('.  Casr.  Ai.p..  p.  llvJ'J. 
•■'  .Am,  Ajiii.,  vol.  vi,  )i.  l-'T, 


p.  111-'. 


m 


TUK    I'LOKIDA. 


G5 


IS    ICjilS 
►        *    SIC- 

lici;il,  hi 

rsuii  oil     , 
y  iiiiUv«'s 

•ll    (ttlllM 

tluMciii. 
sIku'C  in 
nn'ii  t'or 
iiitcrost 
1   to  lltM 

»•  (It'part- 

vln'HCVtM 

iisut'ctor. 

-V-'       * 
{\v.  MUllfl 

'clioii  l.">. 

I-   J»;>VV('1S, 

l(liilH't>    Ot 

1'  lor  sncli 
Ik-  think- 

S,   IMptTS. 

or  :nl!nin 
iiaUi'  iUiil 
by  liini  in 

lit'  otlicci-- 
Hintiolh'tl 
lli'i't' 
|u'  ollieers 
liat  sonic 
lilted,  and 
[n  im|Uiry 

Co..  and 
ion  ;  and. 
I'o.)  would 
ilcr  oatli,' 
IMcstoi'  \ 
■lit  *»i  tlic 
\y  lliroil^'ii 
ll  a;AtMits" 
liavc  'H't'ii 
ini  of  II. 
)lty  ('our' 
IW'paitiU'' 


from  tlia^  port,  to  tlic  firm  of  II.  Addcily  iS:  Co.  at  Nassau  ;  and  in  accord- 
ance with  facts  \\!dcli  iiavc  been  sul)sc(nicntly  developed,  lie  must  have 
boen  coinitelled  to  testily  that,  at  tin'  time  of  her  rejiistry  she  was  in  fa<*t 
owned  by  the  insurgent  ji;-over!iment,  and  was  about  to  sail  trom  Liver- 
pool for  its  use. 

Fawcett,  Treston  \'  <'o.  woidd  have  lieeii  eomitelled  to  testifythat- 
tliev  contracted  witii  IJnllock  f<u'  the  construction  of  the  vessel:  that 
they  did  not,  in  their  eoiitraet  with  iMilh'r  iS:  Sous,  act  as  the  a<;enls  of 
Thomas  lii(»theis ;  and  that  she  was  not  intended  lor  the  Italian  dov- 
(aMiment,  'out  for  the  iiisiiry;ents.  They  would  also  have  iieeu  coinpelh'd 
to  testify  tliat  at  the  very  tiuu^  they  had  themselves  eomideted  Iut  arma- 
ment, and  were  shipping'  it  upon  tlieliahama  (a  vessel  placed  at  thedis- 
]»osal  of  the  aji:eiits  of  tlie  insur}jfents  tor  that  purpose  by  I'ra/er,  Treii- 
holiii  iV  Co.")  for  transfer  at  Nassau,  oi  some  other  ptut  tiiat  miiiiit  be 
a.iireed  ni»oi'.- 

I'poi.  this  iiilormation  beiu;^'  thus  obtained,  Mr.  Ildwards.  the  Col- 
lector, W(»iild  readily  call  to  his  mind  the  fact  that,  as  early  as  the  tth 
of  duly.  ISiil.tlie  Act  in;:"  Consul  (d"  the  Curt  d  States  at  Liverpool  bad 
aildiessed  liim  by  letter  as  follows:  ••  I'rom  iiiforination  I  have  received, 
I  have  reason  to  believe  tliat  a  i>eison  named  lUdlock  has  com«'  to  Vluji- 
land  for  the  pnii»ose  of  ]U'ocuriii;;  \cssels  to  lie  littt^l  as  prixateers  to 
cruise  auaiiist  tiie  couiinerce  of  tlie  CmtcdStat  s.  ;mdtha{  he  will  iiiiuce 
Liverpoo!  tlu'  scene  ol'  his  operations."  • 

It  is  true,  as  is  said  in  the  IJritish  Counter  ( 'asc,  that  in  a  court  of 
justice  ill  <Jrcat  IJritaii;,  and,  probably,  before  this  tribunal  instituted 
iMxler  the  31t  reliant  Sliippin;;'  .Vet,  a  witness  cannot  be  compelled  to  an- 
swer any  (piestion  which  would  expose  liim  to  a  i»eualty  or  to  a  pi'(»se- 
cntion  for  an  ((tVeiise  a.uainst  tlu'  law:  but  it  is  just  as  true  that  this  is 
a  privilej:t'  peisidial  to  the  witness  himself,  and  liiat  the  Ciovernment 
need  not  relVain  from  callin^i'  upon  one  of  its  subji'cts  to  testify,  lu'cause 
he  iiii,iilit  elect  to  a\ail  himself  of  such  a  luivile^^e. 

in  \  iew  ot  tiiesc  facts  the  I'liited  States  ask  tlie  attention  of  the  Ar- 
bitrators io  the  following  statement  in  theCounterCasedf  I  ler  Majesty's 
(loveinm.'iit  :  "  In  truth,  these  ojieu  and  iiottuiiuis  laets  do  not  appear 
to  have  been  discovered  till  loiiu'  afterward,  even  by  the  industrious  re- 
I  searches  (»!'  tlu;  (loverument  and  sulMU'diiiate  ollieers  of  the  L'uited 
States."  '  The  arliitrators  will  look  in  vain  Ibr  any  evidence  of  "  indus- 
trious lesean'lies"  by  the  ( ioveiniiK'iit  or  subordinate  ollieers  (d"  (Ireat 
|l>ritaiii.  A  builder  who  knew  notliin,n"  was  imiuired  of  and  he  jLjaxe  his 
i'' uiiderstandiu-i."  A  Colleetoi  expressed  his  ••belief."  and  there  the 
f"  researches"  ended. 

Ajiaiii,  oil  paj;e  7.">  of  the  I'.rltish  Ccuinter  Case  is  this  statement  : 

Wliiit  llicliiiN  iTiiiiKnt  ilidoii  ri'ci'iv  iiit;  Mr.  Ailiiiiis'src|ir('sontatiiiiisisstatnl  iiitln'  I>rit- 
i.Hli(  'iiM'.  lin|iiir\  was  i  list, •intlyiliit'ctcd.  lint  no  ill  l'<iiiiiatii)ii  wliatfv  it  could  Ui'iilitaiin'i! 
tciidinijIiM  .iiiiicct  the  \rvscl  ill  any  way  w  itli  tlif  ( 'onli'diTalf  Statfs.  Sin-  w  asdcclarrd 
li\    tile  liiiildi  r  to  lie  ordcicil  t'«ir  a  (iini  in  l'ali'ii;ii>.  a  iikhiImt  nf  wliicli  was  i( 


I 


I: 


'  Hritisli^Vii]*..  vol.  i,  j).  ITS 

■Lftter  (luiii  .Major  jjnst^  to  (Joiiias,  Manli  1">.  l-'ti'J.  Am.  Ai»|i..  vol.  vi. 

'Am.  Ai>i>..  \o!.  \  ii,  \    ' 


OH. 


Kill.  ( '.  Casi'.  p.  74. 


O  (! 


iW, 


Ai.'(irMi:Ni'  <)i'  Tin:   i"Niri:i>  siaiks. 


liM|uii  V  Wiis  iiKh't'd  institiitt'd  on  tlu'  I'.Uli  of  l-'i'Idiuiry,  Itiit  it  stojipi'd 
on  tilt- LMItli,  iiiid  was  nrvtT  diivctj'd  to  tlu*  sonn-osot"  suspicion  indicated 
l>y  .Mr.  Dudley.  In  fact,  on  tlu^  L'(»tli  of  l'\'l)ruai>  ivcry  otHccr  of  Ilcr 
Majesty's  (lovciinncnt,  that  1  lie  Tnitcd  States  were  assured  wotdd  he 
on  tlie  •' watcli/' ai»|»eais  to  iiave  closed  his  eyes  and  to  have  left  thf 
vessj'l  and  her  owneis  entirely  to  themselves. 

On  the  L'Sth  of  \pril  the  ()i«'to  arrived  at  Nassau.     She  was  still  ;i 

JJritish  ship,  with  a  IJritish  reyistrv,  under  the  ISritish  lljiy. 
A.r>.ii  .T  N....  1  •         II  •  •  1  '        ■ 

and  Ml  a  ISiinsh  pori. 

On   ilii-  MHh  of  April  Coniniander   McKiilop,  in   his  report   t«)  the 

,,„ ,..,„,,..,,  .\<lniiralty,  says  she  is  '•  under  the   Iji^ilish  tla.ii."  '     (i:>ver- 

••'""'■''"'•'  nor  i'layley,  in  his  letter  to  ( 'oniinandei'    .McKiilop,  on   the 

.'>d  of  .lune.  says ;  She  •' is  a  re;iist«'r('d  llritish  vessel  and  carries  the 
IJritish  lla;;."  and  (  oniniaudei'  llicklcy,  on  tlu'  l."»th  of  .lune.  in  his 
letter  to  the  ( iovernoi',  relers  to  her  as  "a  vessel  iiiidei'  Hiitish  colors." 

As  has  lieeii  already  seen,  she  was  then  evich'iitly  a  vessel  of  wa',  and 
specially  adapted  to  warlike  |>ni)>oses. 

Her  .Majesl>"s  ( Joveruiuent,  at  tlii-«  time,  certainly  had  reasonablf 
L-^ronnds  to  helicve  ^he  was  intentlcd  ti»  cruise  ami  carry  on  wai'  a;iainst 
the  I'nited  States. 

On  thelMhof  May  Cioxcrnor  llayley  iudoised  on  a  itlter  to  him  nl 
that  date  from  Mr.  U'hitin;;'.  the  <"(Uisul  of  the  I'nitcd  States.'  jln'  foi 
htwin;;  statemeiil  :  ••  1\m' coupling  t hat  fact  with  the  description  ;;iveii 
ine  hy  the  Captain  of  II.  M.  ship  IWdl  doj.:',  of  the  build  ot  the  Oreto. 
I  cannot  fail  to  infer  that  she  is  a  \ cssel  of  war  intended  to  act  a^iainsi 
the  I'nitJ'd  States."  '  On  the  same  day  he  caused  a  letter  to  the  same 
elVect  to  he  addressed  to  II.  Adderly  \  Co." 

And  a;^ain  <tn  the  L'lsL  of  .Iiiiie.  in  his  report  to  the  I)ul<e  of  Newcas 
tie.  he  says:  *•  Throughout  these  occurrenees  1  was  averse  from  jiroceed 
in^  to  extrennties.  Not  that  I  C(uisidered  the  conduct  of  the  Oreto  to 
he  entirely  tree  fiom  suspici(ui,  (U'  in<h'ed  iVom  disciairtesy  to  a  neutral 
jiovernment."'  J  low  was  (iicat  Britain  neutial  to  the  Oreto.  a  r>riti>li 
ship.  und«*r  Uiitish  «'olors  .'  And  in  the  same  lettci-,  he  says  Commandci 
llicklcy  infornu'd  him  ••  her  ical  destination  was  openl_\  talked  ttf." 
Ajjain.  '•  Her  Majesty's  (lovernnuMit  is  informed  and  believes  that  duriii;; 
the  blockade  of  *he  insurgent  States  it  was  a  common  ])ractic«' tor  ships 
leavin;;  tlu-  i»ort  of  Nassau,  with  tlu'  inl«'Ufion  of  endeavorin^i-  to  run 
tlieir  carjjoes  into  the  blockaded  jiorts,  to  clear  for  St.  John's,  New 
lirunswick."  '  "  Karly  in  the  month  of  .lune,  l.S(;i.»."(al)out  the  4th.)  "tlif 
consi;,MU'es  of  the  vessel,  who  were  a  mere  mercantile  firm  ar  Nassau. 
applied  to  the  lleceivcr  (leiUMal  (the  proper  olhci'r  for  that  purpose)  for 
permission  to  load  her  for  an  outward  voyaji'c  to  St..lohn's.  New  IJruns 
wick."  "  At  this  time  she  was,  accordinji  to  the  opinion  ol  Commandci 
McKiilop,  "'not  capable^  of  takin;^;  in  any  cai'ifo,  liavinj;  no  .stowa;;*'- 
On  the  IMli  she  commenced  taking  in  a  caryo  of  "arms  and  ammuni 
tion,  inclndin;;  some  boxes  of  shells."  (not  likely  to  i»e  of  much  nsv  at  St. 
Joliir.s,)  but,  beiiifj  visited  byComnninder  llicklcy,  discharged  her  car;;i' 
and  dearecl  for  Jlavami  in  ballast." 

At  Nu.s.sau.  then,  the  (io\ernment  certainly  not  only  had  reasonahli 
\VM,t ..,  ,1...  J     jirounds  to  believe,  but  actually  did   believe,  that  she  Wii> 
"■■'"  intended  to  cruise  amiiiist  the.  United  States. 


'  Hiit.  Ai»|i..  vol.  i.  )».  II. 
■Il.iil..  p.  I-. 
Il.i'l..  ).. -Jl. 
'  Itrit.  (.'a.M',  |i.  (il. 

'  Itrit.  Apii.  (oiiiitcr  Ciisc.  vol.  \.  p.  ".">. 
'  111  it.  .\iip..\ol.  i.  p,  l.'i. 


liiit.  App..  vol.  1.  p.  i:{. 
Il>iil. 

Prit.  Cii.M'.  p.  t»;i. 
'Il>i(l. 
Iliiil..  p.  tV't. 


THK    I'LOKIMA. 


(m 


StOpJHMl 

idicatod 
of  Ili'l 

loft  thf 

IS  still  :i 
tish  llii;:. 

t     to    tilt' 

(i:)V*'i- 

).  on  tlif 

lilies  the 

u*,  ill   lii^ 
oolors." 

■  \Vi!'-,  illlll 

oasoiiablf 
\v  ;t;;ainst 

to  him  t<t 

;.'  tlM-    t'ol 

ion  <iivL'ii 
;h('  Oioto. 
ict  a^iiirsi 
)  tho  same 

»f  Xrwoiis 
[ill  j>ro('('«'«i 
(•  ( )r('to  !<' 
ii  iit'Utial 
a  r,riti>li 
inmiantlt'i 
U.'«l  of." 
at  ilurinii 
for  shiiis 
u<^  to  vim 
>lin's,  N<'\v 
ttli,)"tlif 
r  Nassau, 
irposc)  for 
o\v  IJinus 
on»nian(l<'i 
slo\vajr«'" 
I  ainniniii 
us«'  at  St 
licr  cart;" 

icasonaltl' 
^it  she  w;i^ 


1'.}. 


.Ih.I,.  i.I 


I'mltr  tin;  WiiU's  of  tin'  Treaty,  J ler  Majesty's (iovcrnmont  was  bomnl 
to  n.se  "«huMliliji»'nee"  to  iU'tain  the  vessel  at  Nassan,  as  well  as  at 
M\«  rpool.  This  was  iu)t  «loiU'.  but  she  was  peiinitted  to  clear  for  St. 
.lohn's,'  when  that  was  eqnivalent,  according  to  the  i)ractice  which  pre- 
vailiMl  at  that  port,  to  a  clearaiu-e  for  the  insnr,ii('nt  .States. 

lint  it  is  clainn'd  by  Her  Majesty's  (iovernnuMit  "that  the  l'lori«la  was 
seized  while  at  Nassan,  on  ehar<;e  of  a  violation  of  the  l-'iucijin-rjidist- 
nn'nt  Act ;  that  |»roceedinj;s  w«Me,  by  the<Joverin)r'sdiriH'tion,  instituted 
in  the  proper  conri,  with  a  view  to  her  condemnation,  and  that  after  a 
rejiiilar  trial  she  was  nltinmtely  released  by  a  Jiulicial  senteiM'c."- 

It   is  also  .said,  »ni  p.  7S  of  the  JJritish  ('onnter  Case,  that  tlu'  \'ice 
Admiralty  Conrt  "  was  aConrt  of  comiH'tent  Jnrisdiction ;  the 
anthorities  of  the  Colony  were  bonnd  to  pay  obedience  to  its 
(h'cree:  and,  as  soon  as  it  was  prononin'ed  the  persons  claiming;' tlu^  pos- 
session t>f  the  xcssel  were  entitled  to  have  lu     i  nnu'diafely  reh'ased," 

As  between  the  claimants  of  tin'  vessel  ami   Iler  Majesty's  (lovern 
mcnt  seeking  to  entotct'a  forfeitnr«'  nmlerthe  provisions  of  the  l"'oreij;n 
llnlistnn'nt  Act.  this  decree  may  have  been  conclusive;  bnt  as  between 
llie  Cnited  Slates  and  Her  .Majesty's  (lovernnn'iit,  it  has  in)t  that  elfect. 
The  duty  of  Her  Majesty's  (lovernnu'nt  was  to  nse  dm'  dili;;-ence  to  pre 
vent  the  departnie  of  the  vessel,  becanse  she  had  been  specially  adatited 
to  warlike   nse  within    its  Jnrisdiction,  and  was   intemled  to  cruise  and 
tarry  on  wai' a,uain>t  the  I'nited  States. 

She  was  proccedeil  a;iainst  on  t he  .sole  <;i'onml  that  an  attempt  had 
liceii  made  to  e(pii|),  fninish,  and  tit  her  ont  within  the  jnrisdi<-tion  of 
tlie  r.aliamas.  This  is  in  terms  admitted  by  Attorney  (o'lmral  .\nder 
.son  in  his  defense  as  pnblished  in  the  Counter  Case.'  The  JiuljiV,  in 
.I'snonneiiiii'  his  opinioji,  says:  ••  Now.  to  support  the  libel  it  is  necessary 
,!!  i!  prool  shonld  Ite  ^iven,  tirsi.  that  the  aforesaid  jtarties,  havinj;' 
chi.ryc  of  the  Oicto,  while  the  vessel  was  within  th«'  Jiiri.sdiction  of  the 
\'ice  Adnnralty  Conrt  of  the  Mahamas,  attempted  to  «'<inip,  furnish,  and 
tit  her  out  as  a  ves.sel  of  war."  '  And  a;;ain,  on  pa<;('  l.»  he  says:  "With 
respect  to  a«'ts  which  were  done,  or  t'ircnn»stances  which  ocj'iirred  on 
lioard  theOicto  bet\)re  she  «'aim' within  the  jnrisdiction  of  tlu'  Ihihamas 
\  ice  Ailmiralty  Conrt,  it  is  admitted,  and  is  ch'ar,  that  the  Conrt  has 
no  authority  to  adjndicate."  .Vml  aj-ain.  on  the  same  pa;;e:  "Ca[»tain 
]li<'kley's  evidence  as  to  the  construction  and  littiiiji's  of  the  ves.sel  I 
shonld  consider  <M»nclnsive,  even  had  there  been  no  otliei';  bnt  that 
Construction  and  those  littinji's  were  m)t  made  her«',  bnt  in  l-hiffland, 
and  of  whatever  natnre  they  may  be,  do  not  subject  the  v«'ssel  to  for- 
feit are  here." 

The  jdeadiii^s  and  the  pro()f  showed  conclnsively  that  the  vessel  had 
IxM'ii  s|tf.i;dly  adapted  to  warlike  use  at  LiverpiKtl,  and  that  sin'  was 
still  with  a  llritish  IkC^istiy  nmlerthe  iJritish  lla;;:  bnt  in  the  opinion  of 
tln^  Jml;i(',  the  prool  «li«l  not  show  that  any  act  liad  been  «lone  within 
the  Jnristlictioii  of  his  Court  for  which  he  was  authorized  to  decree  a 
forfeiture  to  Iler  Majesty. 

This  decree,  therefore.  «loes  not  operate  as  a  tleleii.se  to  the  claim  now 
made  ajijiinst  Iler  Majesty's  (lovernment  by  the  United  States. 

Ibit  the  United  ^States,  on  payc  .'>i'>  of  their  Ca.se,  have  j^one  further 
than  this,  and  .said:  "If  it  had  been  predetermiiu'd  that  the  Oreto 
shonhl  be  released  by  jioin;;-  through  the  tbrin  of  a  trial  under  the  For- 
ei;:n-Kn!istment  Act,  the  steps  cmJd   not  inive  Ikmui  better  directed  for 


11 

11 


■I'V 

f 


w*.. 


.::*   L'. 


i  Mrit.  A))]!.,  vol.  i,  jt.  .')8. 

ij  Uritisli  ('((iiiitcr  (';im',  ]i,  Ttl. 

?.  )!rit.  Apii..  vol.  I.  ]i.  (is. 


Uritisli  Counter  Case.  ]>.  77. 
'  Mrit.  Ai'p.,  vol.  i,  ]).  :t!i. 


♦J8 


AliGlMKNT    OF    THE    INITED    .STATES. 


that  imrposc."  To  this  tlie  Attorney  (ioihtuI  of  the  Coh)iiy  has  heen 
permitted,  throiijrii  the  British  Counter  Case,  to  make  his  response  tiiat, 
••this  ehar^e  is  wholly  unfouiukMl.  Under  the  cireuhir  (lispat(;h  of  the 
loth  November,  already  referred  to,  the  res{»onsihility  of  initiating 
proceedinjis  under  the  Foreijj;n  Knlistment  Aet  was  phieed,  and  properly 
so,  on  the  Attorney  (leneral  of  the  Colony,  and  that  oflic«'r  had  necessa- 
rily to  be  cautions  in  advisinj,'  the  institution  of  i)ro('eedin*»s,  whicii,  if 
ultimately  unsuccessful,  mij;ht  eventuat<'  in  rendering?  the  seizors  liable 
to  heavy  damajjesJ 

It  will  be  observed  the  Attorney  (Jeneral  «h»es  not  deny,  but  on  the 
contrary  admits,  that  he  was,  durinu  all  the  time  the  Oret»)  was  at  Nas- 
sau, the  "contidi'Utial  counsel  of  Adderly  &  Co.,"  and  that  in  a  speech 
made  in  a  trial  in  another  court,  which  took  plac(^  after  the  Oreto  was 
libelled  aiul  before  the  decree  was  rendered,  he  said  that  "the  Union 
of  the  United  States  was  a  myth  now  fully  exploded.'"  '  He  thinks  he 
did  n(»t  use  the  words  "  Vaidvce  fiction,'' as  "the  us«^  of  words  of  the 
sort  is  not  the  style  of  lanjiuajic^  1  am  accustomed  to  adopt,"  but  he  ad- 
mits that  he*  may  have  used  lan;iiia;je  embodyinjn'  the  expn'ssion  of  an 
opinion,  which  1  certainly  then  ent«'rtained,  that  tlu;  I'nion  which  thi^ 
tlap:  was  intt'iided  to  represent  had.  as  far  as  iclated  to  the  Southern 
jxntion  of  North  Anwrica,  passed  away."'  Neither  is  it  denied  that 
Harris.  4>ne  of  the  lirm  of  Adderly  tK:  Co.,  consiiiiiees  «it'  the  vessel,  was 
one  of  the  lOxeciitive  C«tnncil  of  the  (Jovernnient  of  the  t'olony,*  or  that 
A.  J.  Atlderh ,  another  [>artner  in  the  firm,  was  a  member  of  the  Assem 
bly.' 

ller  Majesty's  (lovj'rnment  admits  in  its  Case,"  and  repeats  in  its 
Counter  Case,'  that  ••  in  a  procee«ling  in  rem  ayainst  a  ship,  to  enforce 
a  forfeiluie  for  an  alle;;ed  inl'rin^icment  of  a  Statute,  a  Court,  wlu-rever 
locally  situate  within  the  «lominions  of  the  Crown,  might  lawfully  re 
ceive  and  adjudicate  upon  evidence  of  sucli  infringement  wheiever  thi^ 
.ict  or  acts  constituting  it  might  have  l>een  committed."  The  tlu'ory, 
then,  on  which  the  Attorney  (leneral  founded  and  conducted  his  ciise 
ln'fon'  the  \'ice  Admiralty  Court  was  erroneous.  \  vessel  speciidiv 
a<lai)ted  to  wiirlike  use  in  Liveipool  might  have  been  condcmnetl  on 
that  cause  u\'  forfeiliue  in  the  l«ahanias,  but  the  Oreto  was  released. 

The  Att<nney  (ieneral,  who  conducted  the  proceedings,  was alsiK-onfi 
dential  «'ounsel  of  Adclerly  «S:  Co.,  when  the  vessel  aiiived  at  Nassau 
on  the  L'stli  of  April,  consigiu'd  to  their  care,      Oiic  lleyliger,  an  agent 
specially  tletniled  by  tiie  insurgents  to  look  after  their  intei'ests  at  Nas- 
saii,'  directed  her  to  judi-eed  to  Cochrane's  anchorage,  '-there  being  no 

Confederate  naval  ollicer  to  take  charge  (»t    her  for  tlie  ))ri'sent. She 

wa.-;.  however,  on   tliat  <lay  entered  at    the  Custom   lb. u>e  at  Nassau  in 
balhiNt.''    On  the  I'.Mh  of  May  the  Consul  of  the  Initetl  States  wiote  to 
the  (iovernor  of  the  Colony  that   it  wa*;  "•  Itelieved,  and   so  reporlt-d  by 
many  resi«lents  here,  that  she  is  being  pi'eparj'd  and  litted  out  a^  a  con 
federate  privateer."  '-' 

The  Covern<U'  dir«'ctedan  immediate  report  fnuu  the  Iveccixt  r  (ieneral 


'  Hiitisli  Countci  (jisc,  p.  t7  :  Prit   .\i>|».  Oniitcr  Cini',  vol.  \,  pp.  l«»^^k 
-  Aiiifiiinn  <"asi'.  |tiijif  :M4.  '  llti<l. 

'  Itritisli  Ap)!..  CoiiritiT  (  asr,  vni.  v,  p.  -J.'.  ■  Vw^v  •»♦>. 

*  Aiiii-iii'iiM  App..  vol.  vi.  |i.  'i'M .  ''•■»>;<'  T***, 

"Tostiiiiiiiiy  III  Hauls,  liritisji  App..  r  Mint,  r  ('uh*'.  vol.  v.  p.  4K 
■'Hfiijainiii  I"  Mallitt,  .Xiiu'rica'i  App..  xul.  vi.  p.  ">?. 

'"  Hi'N  li-^tT  t<»  l{antli)lpli.  Aiiu'i  i<  an  App..  vdl.  vi,  p.  TT. 

"  Htitisli  Ap|>..  Counter  Ca."!',  »ul.  \.  p.  'X>. 

'■  Uritisli  ('as.',  p.  CI. 


Tin:    KLOKMDA. 


(;*) 


r.itti.il  :i  nil  >i  Ji 
•.-nHv  rnmliirl  <» 
■V        ilflllUll  illilllttl  < 


'1-  till' 

M'oiy, 

S    CilM' 

'ciallv 

l('(l  «ui 

st'd. 
coiiti 

Nassau 
au'nit 
t  Nas- 

■iiiji'  nil 
Slu' 

ssaii  ill 

I'Ott'  to 

.  fl  In 
.1  con 


as  to  tlu'  truth  of  tlicsc  allcjiatioiis.  and  lu',  on  the  same 
(lay,  roportcd  :  "  She  «li(l  not  cntor  tlio  liarbor,  and  now  lies 
at  Coclirant-'s  ancliorajio,  and  I  have  no  information  as  to 
her  fntnrc  )>ro<;«>e«linjis,"' '  On  the  sanies  day  tho  Attorney  (Jcm'ral  was 
called  upon  for  his  opinion,  and  he  i'ei»orted  as  follows:  "  With  respect 
totheOreto.  theConsnl's  alle<iation  is  to  the  etVeet  that  it  is  believed 
ami  rei)ort»'d  by  many  residents  here  that  she  is  beinj;'  prepared  and 
fitted  out  where  she  now  lies  at  (Jochiane's  anchorage,  which  is  within 
the  limits  of  the  jiort  of  Nassau,  as  a  (,'onfederale  privat«'er.  Now  if 
such  is  the  fa(;t,  an  offense  a,nainst  the  Foreij>n  I'.nlistnu'Ut  Acthasbeen 
coiiiiuitti'd,  all  i)arties  implicate*!  in  which  are  liable  to  be  criminally 
proceeded  ajiainst  for  misdemeanor,  and  the  vessel  may  bo  seized  by 
any  naval  or  revenue  ollicci':  but  to  justily  pi'oceedin<>s  either  against 
the  |»arties  or  the  vessel,  the  matter  must  not  rest  on  re|>ute  or  l)elief 
alone,  but  the  authorities  must  have  positive  facts  to  j^round  their  pro 
ci'i>din<'s  on,  and  unless  the  Consul  can  adduce  such,  or  they  can  be 
obtained  throiijuh  other  channels,  no  steps  can  be  taken  either  for  the 
arrest  of  the  vessel  or  those  on  boai'd  of  her.*- 

On  the  saiiu'  day  the  (loveriuu"  cai.sed  a  r.ote  to  be  sent  by  the  Colo- 
nial SccH'tary  to  Addeiiy  tS;  Co.,asf(tllows:"I  am  directedby  the(Jovernor 
t(>  notify  to  you,  that  if  you  are  arniin;;'  or  j)!  ttin<>'  arms  on  board  the 
st  earner  Oret  O.I  lis  Ivxcellency  will  en  force  the  rules  laid  <lown  in  theC^ueen's 
IM'oclamation,  for,  couplin,".i'  that  fact  with  the  desciiptiim  jjiven  to  his 
excellency  by  the  captain  of  Ib'i-  Majesty's  ship  llulldoj?  of  the  build  of 
the  Oreto.  iiis  Ivxcellency  cannot  fail  to  infer  that  she  is  a  vessel  of  war 
intended  to  act  a<iaiiist  the  riiifed  States:  and  as  Her  ^Nfajesty's  (lov- 
erninent  have  expressed  their  delilierate  intention  of  observin<>' and  pre- 
scrvin.:;'  neutrality  in  the  (^ueeirs  poss(>ssious.  Jlis  lvxcellen(;y  will  use 
ills  strtmiicst  elforts  to  ]»re\»Mit  either  of  the  belliuvrent  ]iowers  from 
ariiiiiij;'  or  equippinji'  vessels  of  war  in  this  port."  ' 

T()  this,  upon  the  next  day,  Adderly  tS;  Co.  wrote  in  r<'ply :  '■'  We  bej; 
to  acUnowledjiC  receipt  ol'  your  coinmunicatiou  of  yestenbiy's  date 
infonninji'  us  that,  if  we  were  arminji'  (U'  imttinj;'  arms  on  board  of  the 
steamer  Oreto,  His  Kxcellency  would  entbre  the  rules  laid  down  in  the 
(i>ne«'n's  Proclamation.  In  reply,  we  bej^-  to  state,  for  the  infornuition  of 
His  l-'\cellency,  the  (lovernor.  that  we  have  neither  attempted  to  arm  or 
put  arms  on  board  of  the  Dritish  steamer  Oreto,  consigned  to  our  firm,  nor 
are  we  aware  of  then*  beinj«'  any  intention  on  the  part  of  the  owners  to 
arm  that  vessel."* 

On  the  trial  beforethe  ,Iu<l^e(»f  the  \'ice  Admiralty  Court,  Harris,  one 
of  the  lirm,  and,  as  has  been  seen,  a  member  of  the  Executive  Council, 
testified:  "I  to  d  Captain  Du^iuid,  very  siiortly  after  lie  arrived  here, 
that  they  were  talking-  a  j^ood  deal  about  the  hull  of  his  vessel :  mind, 
do  nothinjr  that  will  have  the  appeaiance  of  eipiippinj*'."  ' 

Here  it  may  not  be  improper  to  call  the  attention  of  the  Arbitrators  to 
a  letter  from  Heyli<>er,  the  aj^eut  of  the  iusurj,'ents.  to  their  Secretary 
of  War,  nmlerthe  -d  of  May,  in  wliat  he  says;  "  You  are  aware  that 
she  is  a  {gunboat.  *  *  *  The  Hahama  is  expected  every  moment  with 
lier  armament,  and  I  shall  hav«'  it  speedily  transferred,  thoujih  the  matter 
will  ha\  e  to  be  delicately  manajit'd.""  The  IJahama  did  afterwards  arrive. 
The  United  States  are  unable  to  jjivo  the  date  of  her  arrival,  but  she 
first  appeared  at  Co(!hrane's  Aiichora<j;«',  near  the  Oreto,  without  any 


¥»!!>  . 


k 


'  Uritisli  App.,  Counter  ('umi-,  vol.  v.  p.  :>.").       *  Hrit.  Ajtj)..  vol.  vi.  p.  1(5. 


Hritisli  App.,  vol.  i,  piigo  1.'). 
il.iil. 


Hi  it.  Ajtp.,  (ntintpr  Case.  vol.  v.  i».  4i 
'  Am  .App.,  vol.  vi,  p.  MM. 


70 


AKGIMKNT    (»F     Till:    IMTKI)    STATKS 


ciitr.v  at  the  Custom-Ilouse  oriniyi'iistoin-UoiiseOniccisoii  board.'  Ou 
flu?  2(»tli  the  IJorcivor  (leiicral  advised  theColonial  Secretary  that  lu?  had 
"  iivery  reason  to  believe  tho  eoiisi<;iiees  of  the  JJritish  steamer  Oreto 
(whieh  vessel  arrived  from  Liverpool  in  ballast)  intend  shippinfj  larjre 
(luantities  of  arms,  ami  munition  «»f  war  as  earj^o.  *  *  ♦  I'robably 
application  nniy  bo  made  to  allow  ear^io  Irom  other  v«'ssels  to  be  trans 
ferr«'d  to  the  Oreto  where  she  now  lies."-' 
On  the  Uith  *he  Hahama  entered  inwar<ls  with   Adderlv  vV  Co.  as 


On  the  I'Sth  Commandei-  McKillipadvist'd  the  j;t)vernor  that  ''several 
steamers  havinj^  anchoretl  at  ("oehrane's  Anelunaj^e,  I  sent  an  ollieer 
yesterday  to  visit  them  and  muster  their  crews,  and  ascertain  what  they 
were,  and  how  employed.  The  otlicer  rei>orts  that  one  steamer,  the 
Oreto,  is  apparently  tittin^-  ami  preparinj^  for  a  \  «'ssel  of  war.  Under 
those  cir(rnmstances  1  would  su}i}j:est  that  s\h\  should  come  into  the 
harbor  of  Nassau  t«)  prexcnt  any  misunderstanding  as  to  her  eciuippin^' 
in  this  port  contrary  to  the  Foreij^n  l*-nlistiuent  Act,  as  a  pri  vateer  or  war- 
vessel."  ' 

On  the  same  day  the  (loverncu-  adtlressed  the  Attorney  Oeneral  and 
desired  "to  know  whether  it  is  contrary  to  law  to  (U'der  the  Oreto  to 
come  down  to  the  harbor,  as  the  <  'ommander  of  tlu'  IWdhloji'  has  reported 
her  to  have  the  appearance  of  a  luivalcer  armiii;;-  herself."'  Tlu'  Attor- 
ney (leneral  innnediati'ly  replied  that  he  was  "ol  opinion  that  an  order 
for  the  rcmtnal  of  the  Oreto  from  Cochrane's  Anchorajic,  where  she  now 
lies,  to  tlu'  harhoi'  of  Nassau  should  not  be  made,  as  su<*h  older  could 
not  be  legally  enforced  unless  it  was  <listinctly  shown  that  such  a  viola- 
tion of  law  had  taken  place  in  icspeet  «)f  her  as  would  Justify  her 
seizure."'' 

On  the  next  day  the  (lovcrnor,  havinj-"  callt'il  for  a  further  an<l  nu)re 
detailed  report  upon  the  same  siilijecl,  tlu'  Attorney  <!emMal  in  reidy 
said  • 

My  reply  iifvrstfiiliiy  wiis  iicccssurily  slio;!.  as  >i)iir  iiKtr-  was  icr.'ivfil  at  .-i  late  hoiir 
ami  I  was  anxious  to  send  an  iiiinu'diatc  answer  in  mder  tlial  an\  aciion  in  the  matter 
lel'erred  ti>  niii;lil    1>.'  ,-;e\  ented.  "     Any    iJiitisli   in- tore i an    lradin;j,    vessel    lias   a 

vijilit.  in  canyin';'  on  liei-  hiwl'nl  (vinunereial  jniisnits,  to  use  .-is  aneli()iaj;e-]»laeesany  ot 
iIm'  Inirliors,  roadsteads,  and  anelioiaiies  in  the  Colony,  Jteyond  exercisin;;;  the 

powers  eonl'eired  on  him  l;y  the  trade  laws,  ills  llxeelleney  liiis  no  jtower  to  compel  tlie 
removal  of  the  ()reto  I'rom  liei'  jirisenl  an('hora<;e,  unless  >ome  aet  has  been  (ioiii>  in 
resjiect  ol'  lier  whieh  wonid  eonstitnte  ;i  violation  (>;■  law  and  snhjeet  her  to  sei/.iwe. 

This  l>rin;;s  me  to  the  ipiestion  whether  there  is  anythinji  disidosed  in  your  oommniii- 
eation  whieh  would,  in  ,i  court  of  law,  Jnstil'y  the  t'oreihlc  removal  of  the  vessel  from 
her  jncsent  jiosilion.  'I'he  iuformat  ion  amounts  totiiis:  that  the  senior  niival  otlicer  on 
the  station  has  ollicially  reported  to  liu'  (Joveruor  that  this  vessel  is  apparciUly  tittiii<;' 
and  preparing;-  for  a  vessel  of  war,  or,  as  ■•tated  in  your  m)te  of  yesterday,  lias  tln^  aji- 
|iearanee  of  a  ]iri\ateer  arminji  herself.  Now,  unless  Captain  McKilloj)  f>r()mids  the 
o|iinion  f(>rme<l  ami  reported  hy  him  on  some  overt  act,  sucii  as  the  ]dacinji  of  arms  or 
other  munitions  of  w  ar  on  hoard  ot'  the  \  t'ssci  w  ithout  the  sam'tion  of  the  Uevcmie  De- 
partment, or  souH'  such  similar  aet,  e\  idenciuL  an  intention  on  the  part  of  tlw  ]>orsons 
in  char;;e  of  the  vessel  to  lit  her  out  as  a  vessel  ol'  war  to  l)e  cmjiloyed  iu  the  ser\  ice 
of  a  foiei<;n  helli^^erent  Power,  the  foreilde  removal  of  tin  \i-ssel  from  her  present  i»osi- 
tion,  merely  to  frnar<l  ajiainst  a  jiossihle  infraction  of  the  law,  could  not  Ijc  Jnstitied. 
Such  rcmo\  al  would  iu  tai  i  constitute  a  "  seizure,"  which  the  jiarties  n\akin<;  would  1><' 
rt'Hponsilde  for  in  damages,  unless  they  could  show  a  legal, justilication  which  niiiHt  lie 
l)ased  up(ui  soiuetliing  beyond  mere  suspii  ion. 

Jle  then  says,  while  mere  suspicion  miijht  not  be  sutlicient  to  author- 
ize a  removal,  it  would  justify  the  i»lju'in^  of  "  a  reveuuo  officer  on 
board  ot  her  to  watch  the  proceedinj^h  .)f  the  parties  on  board,  in  onler 


lhi<!.,p.  ;W(i. 


15rit.  Api».,  Counter  Case,  vol.  v.  p.  ;{5.     '•  Ibid. 


IJrit.  Ai»i»,,  (on  liter  C 


ISC, 


,ol. 


p.  ;ui. 


Aui.  Api>,,  vol.  vi,  p.  ;i*25. 


Ibid,,  ]).:vr. 


Tin:  I'LOKiiiA. 


71 


that,  if  any  actual  coiitravoiitioii  of  the  law  took  i)la('e,  it  mij^lit  1k^  at 
oiiw  reported  aii«l  jd-oiiipt  measures  taken  hy  sei/.iue  of  the  vessel  and 
(ithei'wise  to  punish  all  parties  iniplieated  therein." 
Then  he  says: 

I  will  only  niiw  adil  lliiil  I  I'l-rl  that  a  ;;icat  iiicasiirt'  of  the  n'spitiisiliility  ir>t>  ii|miii 
iiir  ill  (|iirstiiins  (if  tliin  iiatiiri'.  and  that  it  lii-hmiM'S  im-  tn  he  particularly  cautions  in 
I'iviiiji  any  a<lvi<'c  w  liicli  may  lead  to  a  course  of  action  on  the  part  of  the  authorities 
hefc  which  may  he  considered  as  conliaveninjL;  the  princi|des  eiininerated  in  thecir- 
ciilar  dispatch  of  His  tiraec  the  I>nUe  of  Newcastle,  on  the  l.'ith  of  Novemltei'  last,  in 
a  i>art  of  which  it  is  stated  :  ••  If  it  should  lie  necessary  for  the  (  olonial  antlioritics  to 
act  ill  any  such  case.  [/.  c.  violation  of  the  l'oreij;M  liiilisiment  Ai't,]  it  shonld  only  he 
done  when  the  l.iw  is  icirnlmiy  put  in  t'urce.  and  under  tin- advice  of  tiic  law -oltjceis  of 
IheCi-own." 

On  the  next  thiy  he  wrote  to  llie  Coloniiil  Secrettiry : 

I  have  the  honor  to  acknowledge  the  receijit  (d"  \dnr  letter  ot'  this  day's  dati'.  and  ha  ve 
to  expifss  my  re^irct  that  His  llxcellency  should  have  misapprehended  the  meaning  of 
my  letter  of  yesterilay's  date,  which  1  certainly  never  iiileniled  shonld  hear  the  coii- 
.•.tniclion  which  His  Excellency  ap|)e,'irs  to  ha\e  placed  on  it,  and  which  I  respectl'nUy 
siihinil  a  careful  perusal  will  show  cannot  he  pliiced  on  it.  Any  act  of  arniiin;',  or  any 
attempt  to  arm  a  \cssel  in  contr.i\  i-ntion  ol'  the  Imperial  Statute,  cominonly  known 
as  the  I'oreiiiii-KnIistmenI  Act.  will  siiliject  the  vessel  to  sei/nre.  and  it  is  ipiite  iinma- 
tciial  inwhiit  manner  the\iolation  ot'  law  i.s  .iscertained.  or  hy  whose  testimony  it 
is  cstahlished.  the  onl>'  necessary  rei|iiiremcnt  hciny;  that  the  fads  i.'-,iiiied  to  shonld 
he  such  as  would  lie  received  III  conn  ot'  law  as  le^al  proof  ot'  the  \iiiIatio;;  '>f  the 
statnic  s(in;;hl  to  he  cstahlished.  With  i.'fi>reni'e  to  the  coiiclndiiii;  part  of  yo.ir 
letter,  I  can  only  say  that  it  is  far  from  my  w  isii  to  dictali^  to  His  I'.xccllcncy  the  conrs.' 
to  lie  imrsned  hy  him.  my  simple  diit.\  hcinj;'  to  ]il,ice  hefore  His  Kxcellcncy  myojiinion 
on  the  state  <if  the  law  liearinu;  on  sneh  point--  as  he  niay  snhmit  for  my  consideration, 
and  that  it  is  entir<l\  for  His  I'.xcellcncy  to  di'cide  whether  he  >vill  In'  i^nidcil  liy  my 
views  or  not.-' 

The  letter  of  tlu^  Colonial  Secretary,  to  which  this  is  a   reply,  is   not 
jiivei!  anion;;'  the  documents  jirodiiced  in  evidcm-c  i>y  (licat  J'.ritaiii. 

Alter  the  receipt  of  the.se  several  letters  from  the  Attorney  ( leiieral, 
the  (lovernor  addres.sed  a  communicjition  to  Commiimler  McKiliop,  un- 
der date  of  .Iiine '_'.  in  which  he  says  that  the  Oreto  shoiihl  not  be  al- 
lowed to  arm  herself  tor  l)elli.y<'rent  purposes  within  the  Jurisdicti<ui  of 
the  harl»or.  '•  Hut,  iiiiisinuch  as  it  is  not  yet  proved  lieyoml  tlonht  that 
the  Oreto  is  a  vessel  of  war.  and  as  it  is  just  possible  tliat  she  may  be 
only  a  merchant  sb.ip  takin;^  arms  and  implements  of  war  solely  for  ex- 
portiition,  it  is  desirable  thiit  a  more  special  iind  minute  examiiijition  of 
her  conditions  and  ecpiipment  should  be  mude  betore  she  can  l>e  treated 
as  a  i>irate,  ii  juivateer.  or  forei.'^ii  man  of  war  armino  within  our  waters." 
He  therefore  retpiested  thiit  such  stej)s  shoulil  be  taken  '' as  in  your 
lirofessional  opinion  seem  best  for  the  juirpose  of  ascertaining'  the  true 
chiiracter  of  the  Oreto  and  the  Uiitur,' of  her  eipiipment :  and  if,  after 
inspeotin,i;"  her  fiuns,  her  crew,  and  the  jn-encral  disposition  of  the  \  es.sel, 
you  are  convinced  that  she  is  in  reality  w  man  of-wtir  (»r  iirivuteer  iirm- 
ing  herself  here,  then  it  will  become  your  duty,  either  to  concert  meas- 
ures for  bringing"  the  Oreto  down  into  this  ))art  of  the  Inirbor.  or,  what 
will  be  a  safer  course,  to  renu)ve  your  own  ship  to  Coehnine's  Anchor- 
age and  there  watch  her  proceedings  from  dtty  to  day."  ' 

On  the  day  of  the  date  of  this  letter  (duneL')  the  ctirgo  of  the  Hahiinni, 
consigned  to  Adderly  &  Co.,  was  "  warehou.sed  "  iiud  stored  tit  Nas.sati 
in  the  piddic  warehouses.^  About  this  time,  Adderly  »S:  Co.  made  iij)- 
plicution  to  the  Keceivcv  General  for  leave  to  ship  a  load  of  arms  tind 
other  inerehiindi.se  by  the  steanu'r  ( )reto.'' 


,     t 


'Brit.  App..  vol.  i,  p.  17, 

■  Testimony  of  IIuri-ii!i,  Brit.  App.,  Couuter  Case,  vol.  v,  p.  40. 


■'  Brit.  App.,  vol.  i,  p.  18. 

^  Am.  App.,  vol.  vi,  pp.  '.Vi^i,  'MG. 


72 


AKGIMKNT    (H"    Till;    I'MTKIt    STATKS. 


I 


On  tlic  Itli  olMiiiH'  tills  application  was  consiiU'iod  Ity  tlir  Ivvrciitivc 
Council,  (.Mr.  Harris  hcin}*'  a  nicnilK.,)  and  with  tlicir  advice  it  was  or- 
dered by  tlic.  (iovornor  that  itinju'ticahlc  the  Orcto  should  take  in  her 
caryo  within  the  i)ort  ot\Nassau.' 

In  ac(!ordance  with  the  advice  of  the(  'ouncil,  the  (lovernor  appears  to 
have  coniuiunicated  this  order  to  Connnander  .M(;lvillo|>,  and  lie,  under 
date  of  the  (Jth,  reports:  "  1  have  visit«'d  the  screw  steamer  Oreto  and 
t'xainined  her.  Hhe  is  titted  in  every  way  for  war  i)urposes,  inajiazines, 
shellrooins,  and  othi-r  llttiii^'s  totally  at  variance  with  the  character  of 
a  merchant-vessel.  She  has  no  jnuns  or  ammunition  on  board.  The 
Captain  does  not  deny  that  she  is  iuteiided  for  a  war-vessel."-  This  re- 
port was  referred  to  the  Attoiiiey  (leiieial,  and  he  on  the  7th  jravc  his 
oi»ini(ui  as  follows:  ''Then^  are  no  I'acts  set  forth  in  the  within  letter 
which  would  in  my  opinion  autIiori/,c  the  seizure  <)f  the  Oreto.  They 
constitute  only  circumstances  of  suspicion,  which  if  couple«l  with  some 
actual  overt  a(;t  would  <loubtless  materially  stren;;then  the  «'ase  against 
the  vessel,  but  which  «lo  not  in   themselves  form  a  <;rouml  of  seizure." 

On  the  l.'Uh  of  duiai  the  letter  of  Commandei'  llickley  and  the  report 
of  himself  antl  his  otilcins,  a  statement  of  the  contents  of  which  has  been 
already  given,  Mas  submitted  to  the  At  tiuney  (ieneral,  an<l  in  regard  to 
them  he  says:  '' 1  am  of  the  opinion  that  there  is  nothing  contained 
in  those  documents  which  would  Justify  the  detention  of  the  vessel."^ 

On  the  l.")tli  of  rlune,  Commander  llickley,  as  has  Iummi  st-eii,  ad- 
dressed another  lettei'  to  the  (lovernor,  in  whi<'li,  in  addition  to  what 
has  been  before  stated,  occurs  this  passage: 

On  my  foi'incr  ciiiinininii'atidii  to  \i>uv  tCxrcllciicv  ol'  tlic  i:«lli  of  .Imir,  I  liiivi'  tlic 
Crown  l.iiwvt  r.->'  oiiinion,  :inil  I  iiiiJim  liiin-^  llic  (nets  of  tlic  lnoadlv  sn-spirious  rliaiiic- 
lur  of  tint  ( »i(t(>  lirrmr  yon,  w  itli  llio  jidilition  ol'  those  of  licr  olil  cit'sv  liax  in;;  li'l't  licr, 
:iM(l  for  wliy.  as  likrw  i-c  her  cnlcrin^i  or  attcniplin;;;  to  tnlrr  a  ni'W  fi>'\>-.  for  yonr 
consiilcialion  and  llir  Law  Oiliccis  of  tlic  ( 'rtiwn  :  and  failing'  tlicir  sanction  to  taki' 
cliaip'  of  the  (Ircto.  (and  it  is  ini|>rolialilc.  if  not  im|iossililc.  that  they  can  know  a  war 
vessel's  ci|ni|inicnt  as  well  as  niyscll'  and  ollicers, )  I  liav  c  (o  siiuncst  that  I  should  forth- 
with send  her  to  the  Coniinodorc  or  ('oniniandi'r  in  Chief  on  my  own  iiidfessional  rc- 
sponsihility  :  as  allowiiijj  such  a  \  esse]  as  the  Oreto  to  pass  to  sea  as  a  Hritish  mer- 
chant vessel  and  a  pcaeefnl  trader  woiilil  comjironiisc  my  convictions  so  entirely  as  to 
lie  a  ne^'leel  of  duty  as  Senior  \a\al  ollicer  here  |>iesent,  and  ceitainl.N'  not  <loiny:  m.v 
duty  in  eo-opcralin;;  with  yonr  I'.xcclleiicy  foi'  the  protection  of  tlie  harhor  of  Xas- 
saii.  ■ 

This  being  submitted  t«t  the  Attorney  (ieiieral.  he  replietl,  that  it  di«l 
not  ai)i)ear  to  him  "to  carry  the  case  against  the  Oreto  further  thsin 
shown  in  the  ])reviotis  reports  of  himself  and  Commander  ^IcKillop, 
and  I  contend  that  no  case  has  as  yet  been  nuule  out  for  the 
seizure  of  that  vessel  under  the  roreign  Enlistment  Act.  With  respect 
to  the  suggestion  in  the  concluding  part  of  Commander  llickh'y's  letter, 
I  have  to  renmrk  that,  if  the  vessel  is  liable  to  seizure  at  all,  it  must  be 
under  the  i)rovisions  of  the  Foreign  Enlistment  Act,  and  if  so  seized  the 
(piestion  of  her  litibility  may  as  readily  ami  etliciently  b«^  decided  in  the 
Court  of  Vice  Admiralty  of  this  Colony  as  before  any  Tribunal  in  Her 
Majesty's  Colonial  L*ossessions,  and  conse(piently  that  no  necessity  ex- 
ists, nor  do  I  think  that  any  excuse  can  be  made,  for  sending  her,  as 
suggested  by  Commander  llickley,  to  the  Commodore  or  Commander  in- 
Chief,  who  1  presume  are  either  at  nermuda  or  Halifax ;  while,  on  the 
other  hand,  if  1  am  correct  in  the  view  I  have  taken  other  noii  liability 
to  seizure,  the  reasons  against  sending  her  hence  will  of  course  be  far 

'Seo  procccdlnfjs  of  the  im't'tin<x.  which  are  stated  in  full  on  paj^e  (W  of  the  Mritisli 
Cast'. 

-lirit.  App..  vol.  i,  p.  "Jn.  <  I?rit.  Ap|).,  vol.  i,  i».  ',':!. 

'Ihid.  Ihid..  p. ','1. 


THK    KLOK'IDA. 


7n 


more  ])o\voirul;  ami  tluMi'lon',  on  either  view  of  the  case,  I  adviso  His 
l^xcelleiiey  to  withhohl  his  siinetion   iVoiu   the  course  of  action   su;j; 
o-ested."' 

On  the  reci'int  of  a  copy  of  this  opinion,  Commander  lli(,'kh\v  aban 
(loned  his  seizure  uf  the  vessel,  since  it  was  not  sanctioned  I>y  the  Law 
Onicers  of  the  Crown  at  Nassau,  and  as  he  was  tohl  by  His  KxceUency 
Tliat  he  did  not  "think  it  consistent  with  law  or  i)ublic  i>olicy  that  she 
should  now  be  seized  on  the  hypothesis  that  she  is  clearinj;'  out  f(»r  the 
pur|)Ose  of  armiu};  herself  as  a  vessel  ol' war  beyond  the  limits  of  the 
iiarbor.  A\'e  have  done  our  duty  in  seein;«:  that  she  does  not  leave  the 
liarbor  cfpiipped  and  prt>pared  to  act  otfensiv<'ly  against  one  of  two 
bellij;erent  nations,  with  each  of  whom  (Ireat  Uritain  is  at  ]ieacc." 

On  the  17th,  however,  nntwithstandinji"  the  sti'on;^'  opinion  ol  the  I, aw 
Oflicer  of  tlie  Crown  wlio  dischariicd  the  duties  of  (^)ueen's  Advocate*  and 
Attorney  Cicneral  of  the  Colony,  the  Covernor  yielded  to  the  conviction 
of  Commander  Ilicklcy  and  his  olliccrs  that  she  was  a  vessel  of  war  thai 
could  be  equii)pe<l  in  "  tw«'nty-four  hours  for  l»attle,"  and  consented  to 
lier  seizure,  as  the  "equipment  of  the  Oreto,  the  object  of  her  voyage 
liither.  the  intent  of  her  voyaj^e  hence,  the  nature  of  her  crew,  and  tiu' 
purpose  of  theii-  enlistnu'iit,  are  all  the  fair  subjects  of  Judicial  invest i- 
jiiition."  '  In  acconlaiM;e  with  this  view  of  the  case  she  was  seized  and 
rlie  (lovernor  jrave  "the  nej-essary  instructions  to  juocecd."  ' 

Under  these  instructions  the  Attorney  (ieneral  ]ti'oceeded  a.nain>t  her 
t)ii  the  theory  of  his  opinions,  so  otten  reiterated,  that  she  could  only  be 
lield  for  acts  ofecpiipment  and  tittin.u  out  actually  occuirinji'  within  the 
iiu'isdiction  of  the  ])ort  of  Nassau. 

The  vessel  had  arrived  at  Nassau  on  tlie  L'Stli  of  April,  six  weelcs  bo 
lore  licr  linal  seizure.     I''rom  the  tiist    she  was  an  object   of     ..  ,        ,    , 
suspicion  and  comment.     Commander  McKilloji   icporled  "'"" 
liei- arrival  and  his  suspicions  to  the  Admiialty  in  Lomlon.  under  date 
of  the  .iOth  «)f  Apiil.     His  report  was  icceiN cd  in  IjOImIou,  s«>  that  it  was 
coimiMinicated  to  the  Forei;-!)  Ollice.  on  the  Jdth  of  .Iniu'.'     Not  a  wor«l 
went  from  any  other  ollicer  at  the  <"olony  t<>  th«>  Home  (iovernnu'Ut  until 
the -1st  of  .Fune,  when  (iovernor  Uayley  rc]>orted  the  st'izure  and  all 
that  i)receded  it,  including'  the  ojunions  of  the  Attorney  (Ieneral.     Tins 
was  communicated   to   tlie  I'oii'ijiii  Ollice  at  London,  on  the  JJlst  ot 
July.  •• 

It  was  submitted  to  the  Law  Ollicers  of  the  Crown,  and  they  on  the 
ll-th  of  Au<>;ust  reported:  "We  think  that  the  facts  warranted  the 
seizure,  but  we  must  add  that  it  is  very  important  that,  on  the  trial, 
evidence  should  be  adduced  of  what  occurred  at  Liverpool,  as  rcj;ards 
the  building*'  and  littinjf  out  and  the  alleycil  ownership  and  <lestination 
of  the  Oreto." ' 

The  Law  Ofticers  of  the  Colony  had  lu)  commujiication  whatever  witli 
the  Law  Oflicers  of  the  Home  (rovernnuMit.  lint  on  the  L'.Sth  of  June, 
Ileyliser,  the  Confederate  ag^ent  at  Nassau,  advised  the  insurj;ent  (Secre- 
tary of  War  that  "the  i)roeeedin}is  instituted  for  her  release  are  now 
complete,  and  will  be  pushe»l  forward  vigorously.  Our  complaint  was 
tiled  in  Court  this  morniufj,  and  the  libel  nuiy  be  put  in  to  day  or  on  the 
•'•'•th.    On  the  Lst  .Inly  our  Counsel  will  arjfuj;  on  the  law  i)oints.'"' 

And  so  it  was  in  fact.     The  seizure  was  made  on  the  17th,  supporte<l 


'  Brit.  Ann.,  vol.  i,  p.  2.'). 

-Ibid. 

■'  Urit.  Api».,  vi)l.  i.  p,  '27. 

'Ibiil. 


•Tbi.l.,  p.  11. 

^  Layanl  to  Rr)gprs,  IJrit.  App..  vol. 
"Hnt.  Ai»p..  vol.  1.  p.  31. 
"Am.  App.,  vol.  vi,  p.  r''^. 


V   ) 


V- 


'>;>. 


AKCr.MKNI'    n|'     lin;    IMIKK    >TArr.s. 


l»y  tln^  alluliivit  of  CommaiKlcr  Ilickli'v  on  tin-  L'Oth:  an  artulavit  of 
cliurn  was  liltMl  by  raptain  Diijiuid  on  tin*  L'Tth  :  the  IiIh'I  was  lilcU  by 
t lie  Attorney  (Irncral  on  tlir  ls(  of  , Inly;  tlir  rcs|»oiisiv»'  ph-a  of  tlui 
i'lainijint  on  tlic  L'lst;'  tin*  tiial  (•(nnnirncccl  on  tlm  lOMi — at  least  the 
first  witness  was  exaniincMl  then  ;  the  last  witness  was  examined  on  the 
L'tith ;  the  ar;;'nni«'nt  was  made  on  the  .'{Oth,  an«l  the  deei'ee  rendered  on 
the  I'd  of  Anf^nst.' 

It  will  be  interestin^i'  to  see  what  was  bein;^-  done  l»y  tlie  a;;ents  »)f  the 
insurgents  while  these  proeeedin;;s  were  ;;(»in<;  on.  MalVitt,  who  had 
been  assii^iH'd  by  Connnander  IJnIlock  to  the  eonunand  of  the  I'lorida, 
(then  called  the  Manassas,)  arrived  in  Nassau  on  the  (»th  of  May,'  and 
on  the  L'l'd  he  lu'ported  to  tin-  insur^^ent  h^eeretary  of  the  Navy  that  lu^ 
Inul  arrived  at  Nassau,  and  had  personally  assumed  eiunnnind  ''of  the 
Manassas,  which  vessel  I  ho|>e  to  have  ready  lor  service  soim."  ' 

On  the  iMJth  of  May  the  insur^'ent  Secn'tary  of  the  Navy  made  a  loqui 
sition  np(m  the  Tieasury  for  )|^r»(>,(M)(>,  to  be  sent  "  to  fit  out  and  ecpiip 
the  Confederat*'  States  steamer  Manassas,  now  at  Nassau,"  '  ami  on  tlu> 
next  day  (the  L'Tth)  a  bill  was  oiderecl  drawn  for  that  amount,  "in  favor 
of  liientenant  dohn  N.  Mitllitt,  Confederate  States  Navy.*"' 

Ileyliyer  was  supi'rintendin,u'  the  alfairs  of  the  insur;;ents  at  Nassau, 
and  shippin;;'  rej;ularly  his  car^^oi's  of  articles  <'ontraband  of  war.' 

Xassun  was  \i,sitc(l  liy  nmnriiuis  )i:irtif>.  aliiiKsi  all  nrwluiiii  wcii'  iimir  or  less  iiitcr- 

I'stcd  ill  wiiat  \va>  llini  cuii'-iilcrcd  tin-  risiiijr  rorhiiD's  i>l'  a  new  nalioii.     Many  urtjit'iii 

were  iH'isiiiis  (if  (Mliiciilinii  ami  ai-i]iiiii'iiiciits,  wliirli  ;;a\  »•  tlii-iii  rcaily  aci'css  In  (lichi'st 

sDcifly  (it'  llii'  jilari-.  while  iiiili>rtiiiiatrl,\ .  (Ill  the  (itliiT  liaiiil,  v.c  lia(l  lnii  I'l'W  Ndrtliciii 

\  isildis." 

Tlic  island  ol  New  \'vit\  idciicc.  of  wliicli  Nassau  is  tlic  milv  inw  ii.  is  a  hai  rcii  liiiic- 
stdiic  nick.  iM'diliiiiii;;  (tiily  smnc  cdaisr  j;rass.  a  I'cw  stiiiit('(l  iiccs.  a  lew  iiiiicapidcs 
and  diaiincs.  and  a  ;;icat  many  saiid-cialts  and  liddlcrs.  I'x  lun^  the  war  it  was  tlic 
i('nd('/\  (ins  dC  a  lew  wreckers  and  lislieriiien.  Cdninierce  it  liad  iKine.  except  sncli  as 
inijilit  jii'dW  out  111"  the  siidii;;!'  trade  and  the  shiiniieiit  ol  urecn  turtle  and  enucli  shells. 
'I'he  Anicriean  war.  which  has  lirouu'ht  wde  and  wretchedness  td  sd  nianydl'diir  States, 
was  the  wind  which  lilew  |irds|ierity  to  Nassau.  It  liad  alrcadx  put  nn  the  air  ol'  a 
cduiinei'clal  city,  its  tine  hailinr  licin;;  tiirdimcd  with  shiitiiinn',  and  ils  w  archnuses, 
wharves. and  (|ua.\s  tilled  to  reiiictidii  with  merchandise.  All  was  lil'c,  hustle,  and  ac- 
I  ivily.  Shijis  were  ciinslaui  Iv  arri\  iiin  and  depnsit  in;;-  t  heir  cary;des.  and  lieht-drau;^lit 
>teamers.  ripiilcdcrate  and  I'nulish,  were  as  ennstaiiily  reld.idiiit;  the»'  carnnes  and  riin- 
niui;'  t  hem  iiitu  l  he  iimts  i>t'  the  ( 'dnl'edcratc  Stales. ' 

'the  notdridus  -^ympat  hies  ot'  theCdldiiy  and  the  siipiiosed  syin|iat  hies  dt  10ii;;land 
witli  the  Siuitherii  ( 'diilederacy  hasc.  1  don  lit  nut.  led  the  ('diisiil.aiid  may  lead  the  (Jon- 
eriiincnt  dt'  the  I  uited  Slates,  td  imajiiiie  that  lliei>ret(i  has  all  aldiie  receive<l  a  cdl- 
liisive  and  dishnnesl  siijipdit  iVdiii  tlie  aiithdrilies  of  tlie  (dace.  Ndlhiii);' cduld  he  fiir- 
tlier  rcnidvcd  t'rdiii  the  truth  than  this  lielief:  still  it  would  he  exceediiiM-ly  awkward 
\M'I'('  the  rcasoiialilellcss  of  these  suspicions  to  lie  tested  l>y  the  experience  ot'aiiy  vcssid 
wliich  arrived  ei|iiipped,  to  act  on  the  I'ederal  side,  and  expeetine'  to  lind  her  arinij  and 
aniiniiuilidii  here." 

'I'hcy  are  all  sdiithern  syniipathizers.  '         "         Indeed,  this  seems  to  Ik;  our 

principal  \u>tt  (irentry,  and  the  aiuount  nl' ludiiey  we  throw  iiitd  the  hands  of  the  Na.s- 
sauitcs  ]irobably  inlluences  their  stMitiincnts  in  our  I'avor." 

On  the  8th  of  dune  Captain  Semmcs  arrived  at  the  island  and  took 
room.s  at  the  hotel.  ][eyli.i>er  and  Lalitte,  aj'ents  of  the  Insurgent  States 
at  Nassau,  gave  him  a  dinner,  at  which  about  forty  per.sons  were  pres- 


tlu 


■Am.  App.,  vol.  vi,  p.  :U7. 
^  Il)id.,  II.  'SMt. 
•  Ibid.,  p.  2:!7. 


'  Krit.  Ajtp.,  vol.  i,  jip.  (51,  (i:?.  (u,  and  li'^. 

-Itr  t.  App.,  vol.  i,  p.  ;{H;  vol.  V,  p.  ;{7. 

-Ibid. 

'Letters  lleylifjcr  to  Kandolpli,  ibid.,  pp.  7(i-H7. 

*  Attorney-General  Anderson's  vindication  of  himself,  February  10,  If/'J.  Urit.  App., 
Counter  Case,  vol.  v,  \t.  2.'). 

"Captain  Sennne.s's description  of  Nassau  in  liis  "Adventures  Atloat,'' Am.  App.,  vol. 
vi,  p.  4f^7. 

'"Governor  IJailey  to  tlie  Duke  of  Newca.stle,  .lune'21,  lHd2,  Brit.  App.,  V(d.  i,  )».  14. 

"  .Journal  found  on  board  the  Flori<la,  Am.  Apjt.,  vol.  vi,  p.  :53.'i. 


Tin:    KI,ni{il)A. 


(•) 


Iriitl  mill  rfl»*ii«»'. 
n*  tntit  i!iiii'4  i-'i 
>'Hf  |iritr*'i*t)iiiit«    'I 


('111.    TIm' siiiin' ^-I'nth'iiK'ii  also  <;nv('  a  diiiiicr  to  Captain  Mallilt  uhilo 
li«'  was  tlinc,  \\iii«*li  was  attentlcd  ity  \hv  saiiu^  mimlH'i-  of  immsoiis.' 

Diiriiij;  tin-  i-xistiiicf  of  ili<>  hlockiuiiMtr  the  Smitliciii  poils  cif  Ainciicii,  vrsscls  li-iiviii^ 
:lii'  poit  ol"  Nhhsjiii,  Willi  llic  intcntiini  of  riiilfiivoiiii^  in  nui  tlu-ir  <'iii';iiM's  into  tlir 
)iii)rk:i*l<'il  piMls,  almost  iiivarialily  clcartMl  lor  SI.  .lolin's,  New  Kniiiswick,  and  iiiaiiv 
•  il'  tlifiii  took  ill  tlirir  out warti  cai'irocs  at  tlu^  luu'liora^fs  adjacent  to  tlio  liai'l>or  oi' 
Nassau.-  Addi-ily  tV  Co.,  tlic  most  inllut-iitial  uii'H  uuliii-  t'sialilisliiiiiiit  in  Nassau. 
wiTc  rri'i'iviii^i  tlii'ir  I  wo  and  oiic-lialf  jm'T  ci-nt.  roiiiinissioii  lor  transslii|>iiit'nl  ;  a  nio»i 
>'\oiliitaiit  dcnianrl.  luil  (ui(>  in  uniHon  with  tiir  iisa;;<-s  of  Hit'  placr,  and  suluiiittcd  to 
111  ('oiisidi'rati<ui  of  ri-tainiii;;  tln-ir  iiitfii'st.* 

It  is  known  tlial  this  tiadf  of  lilot'kadf-rnnniii;;'  has  lii-rii  a  most  |U'olitalil<' trade  : 
that  ;;real  forliines  have  lieeii  made  liy  many  persons  in  eairyiii";  it  on.  and  that  Nas- 
sau and  some  other  plaees  have  swarmed  with  vessels  wliieii  have  never  |U'eviiuis|y 
lieell  seen  ill  those  ports.  ■ 

In  the  midst  ol'  such  sni'ronndin^^s,  and  with  siicli  a  proscciitor,  tlif 
i;\.><i>  of  tlic  ()i«'to  was  tiit'd,an«l  rcsnitj'd  in  a  d»'ci'«'ea;;ainst 
lIcrMaJi'sty ;  and  tin;  rnitctl  Statt's  now  repeat  what  they     ' 
said  in  th«'ii('a.se:  "If  it  had  been  preth'terniined  that  the     Ii 
(heti>  slioidd  he  reU'a.sed,  the  ste[>s  ('onhl  not  have  been 
Itetter  directed  for  that  pnrpo.se."     Adth'riy  \'  Co.  were  at  the  ont.set  in 
t'orined  what  tliey  must  refrain  from  (htin;;'  to  avoitl  a  eonvietion  nnth'r 
the  hiw  as  the  Attorney  (ieiieral  constriK'd  it,  and  tliey  followed  this  a«l- 
\  lie,  as  it  wotdd  .seem,  faithfully.     The  Att<»rney  (leneral  i'ominenced 
iiiid  jtroseeiiti'd  the  ease  upon  hi.s  <!onstrn('tion  «)f  the  law,  which    Her 
Majesty's  (lovernmeiit  admits  was  erroneous.     Me  made  no  claim  before 
the  Jndjie  for  a  ditlereiit  coiistrnclion.  and  the  jiid;ie  proceeded  with  that 
IMiiiit  admitted  a;;ainst  the  (iov(^rnment.     'I'lii^  Cnited  Slates  believe,  as 
did  Mis  I'.xcellt'ncy,  (Joveriior  I>ayley,  that  it  would  have  been  found 
t(i  be  exceed iii^-ly  awkward  to  ller  Majesty's  (lovernmeiit  if  the  reason 
ihleness  of  their  suspicions  had  been  tested  at  that  time  by  the  experi- 
iMiceof  a  L'nited  States  vessel  arriving;'  at  that  port  expectiiis  to  lind  its 
anus  and  ammunition  there. 

As  s»)oii  as  the  release  was  ordered,  that  '"enerjuetic  ol1i(!er,"  Captain 
Mallilt.  and  his  iieiiteiiant,  Striblino-,  "threw  them.selves"  on  board  of 
rile  vessel.''  On  the  eveiiinj;'  of  her  reh'ase,  solomon,  a  shippiiifj-niaster 
at  that  port,  at  the  recpiest  of  Mallitt,  commenced  enjiaj;ini;'  men  for  her 
at  his  shippino-ollice.  \\y  l-'riday  morniii;;'  he  had  .sent  on  board  sixty- 
live  men,  but  in  the  mean  lime  lht>  vessel  had  j^one  outside,"  nmh>r  a 
liearance  in  ballast  for  St.  .bdiiTs,  New  lirniiswick,  obtained  at  the  Cus- 
tom Ilonse." 

On  the  «»th  of  Anjitist  Lalitte,  an  insnrp'iit  aj^ent,  pnreha.sed  the 
schooner  Prince  Alfred  in  the  name  of  A.  .1.  Atlderly,  one  of  the  linn  of 
Adderly  »S:  Co."  On  the  7th,  Adderly  iS:  Co.  loaded  her  from  the  public 
warehouse,  with  the  carf^o  warohon.sed  for  them  from  the  Uahama  on 
the  lid  of  .Tune,  and  with  shot,  shells,  and  st«)res  warehoused  lit  ditlerent 
times  from  other  vessels.  She  was  eh^ared  outward  oil  the  same  day  tor 
St.  John's.'" 

The  Oreto  went  outside  and  steamed  up  and  down  the  coast  trying; 
lier  machinery.     JI<'r  ^Majesty'sship  of  wai-,  the  Peterel,  was     Ar,n„„e„i  o,  u,.. 
at  anchor  outside  the  bar,  and  Avhilc  there  ii  boat  from  the  ^'^^""^■'■ 
Oreto,  with  "a  man     'lo  stated  he  was  the  master  in  command  of  the 


'  Am.  App.,  vol.  vi,  pp.   HT,  ■\*-7. 

■  Att.-Gcn.  AnderHoii,  Sepi,  1,  1  *71,  Urit.  Ai)p.,  vol.  i,  i>.  .^:?. 

Heyli;ier  to  Henjiiinin,  ^  -v..  ^  (ip.,  vol.  vi,  p.  (ili.  <  Ibid. 

'  l^oid  Kiisspll  in  the  Hoiii.se  of  Commons,  Febrtniry  1(1,  18()4,  Am.  App.,  vol.  v,  p. 

Am.  App.,  vol.  vi,  p.  4''9.  "  Ain.  App.,  vol.  vi,  p. 

"  Urit.  App.,  vol.  i,  p.  .')^ .  "  Kirkpatiick  to  Seward,  Am.  App.,  vol.  vi,  p. 

"  Am.  App.,  vol.  vi,  pp.  3'2.'),  :V26. 


.-)-2t;. 
:ni. 
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ill.  5 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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1.0 


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1.25 


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11 


2.0 


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Photographic 

Sciences 
Corporation 


33  WEST  MAIN  STREET 

WESSTER.N.Y.  14580 

(716)  872-4503 


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7(; 


ARGUMENT    OF    THE    UNITED    STATES. 


Oreto,"  came  aloiigsiile ;  ''said  he  was  very  short-handed,  and  wanted 
to  anchor  for  about  two  hours  to  adjust  liis  machinery,  but  if  he  ancl)- 
ored  outside  he  had  not  sutiieient  crew  to  weigh  liis  anchor,  and  begged 
I  [the  captain  of  the  Peterel]  would  assist  him  by  lending  liim  men." 
The  men  were  refused,  but  he  was  told  "  he  might  hold  on  astern  of  the 
Peterel,"  and  si  line  was  given  him  for  that  purpose.'  The  same  night 
about  one  o'clock  the  l*rince  Alfred  came  out  from  Nassau  while  the 
Oreto  Avas  fastened  astern  of  the  Peterel.  When  she  got  outside  of  the 
l)ar,  a  light  was  struck  on  board;  the  Oreto  let  go  the  hawser  of  the 
Peterel,  stood  to  the  northward  for  a  while,  and  then  rounded  to  and 
took  the  Prince  Alfred  in  tow.^  The  two  vessels  then  proceeded,  the 
Prince  Alfred  being  in  tow,  to  Green  Cay,  about  sixty  miles  irom  Nas 
sau,  and  there  the  guns,  ammunition,  and  stores  were  transferred  from 
the  Prince  Alfred  to  tiie  Oreto,  about  a  week  being  occupied  in  so 
doing.' 

It  is  said  on  page  78  of  the  British  Counter  Case  that  Her  Majesty's 
Government  has  no  means  either  of  verifying  or  disproving  the  truth  of 
the  statement  in  the  Case  of  the  United  States  as  to  the  arming  of  the 
Florida.  On  page  07  of  the  British  Case,  however,  it  is  said  that  Her 
M.njesty's Government  "has  been  informed  and  believes  that  she  was  sub- 
se'iuently  armed  for  war  by  a  Captain  ]\raftitt ;  *  *  that  she  was  then 
(commissioned;  *  *  and  that  after  keeping  the  sea  for  a  few  days,  she 
l>ut  in  at  the  port  of  Cardenas,  in  Cuba,  where  (or  at  Havana)  she  re- 
mained for  nearly  a  month.  On  the  4th  September  the  vessel  arrived 
at  and  entered  the  port  of  Mobile."'  The  precise  point  at  which  she 
took  on  her  armament  is  not  important.  It  is  suflicient  for  all  the  pur- 
l)oses  of  the  United  States  that  she  was  armed  within  a  short  time  after 
she  left  Nassau.  It  appears  from  the  admissions  in  the  Jiritish  Case, 
that  she  entered  the  port  of  Mobile  within  a  month  after  leaving  Nassau ; 
that  she  rcnnained  at  Cardenas  or  Havana  about  a  month  before  she 
went  to  IVIobile,  and  that  she  was  armed  and  commissioned  before  she 
reached  Cardenas.  These  admissions  establish,  therefore,  the  important 
fact  of  arming  shortly  after  leaving  Nassau.  But  the  United  States 
submit  that  the  proof  presented  by  them  establishes  the  further  fact  that 
she  was  armed  at  Green  Cay,  in  the  manner  and  under  the  ciicum- 
stances  they  have  alleged.  This  proof  will  be  found  in  vol.  vi  of  the 
American  Appendix,  pages  30G  to  321. 

The  Oreto,  with  her  guns  all  mounted,  at  8  a.  m.  of  the  17th,  parted 
from  the  Prince  Alfred,  hoisted  the  tiag  of  the  insurgents,  and  started 
upon  her  cruise  under  the  name  of  the  Florida.*  She  proceeded  to 
Cardenas,  a  port  under  the  jurisdiction  of  Her  Majesty  the  Queen  of 
^^  j^,  ^  Spain,  and  there  attempted  to  ship  a  crew,  but  "  the  matter 

' was  brought  to  the  notice  of  the  Government,''  and  an  officer 

sent  to  the  commander  of  the  Florida  "  with  acopy  of  the  proclamation 
of  the  Queen  of  Spain  and  a  notification  to  him  that  the  Florida  had 
become  liable  to  seizure ''  The  commander  then  "  repudiatcid  the  trans- 
action, and  to  avoid  difficulty  with  the  Government,"  paid  the  passage 
of  twenty  men  to  and  from  Havana,  and  returned  the  men  to  Havana. 
This  was  upon  the  3l8t  of  August.'' 

She  then  sailed  for  Mobile  and  ran  into  the  i)ort  through  the  blockade 
on  the  4th  of  September  "  wearing  the  English  red  ensign 
and  pennant,""  and  painted  like  a  British  vessel  of  war.    A 


M  Mobile 


'  Letter  of  WiitHoii  to  Admiralty,  Brit.  App.,  Counter  Cnne,  vol.  v,  p.  .M. 

-AtHdavits  of  Solomon  mid  Lee,  Am.  App.,  vol.  vi,  pp.  312,  3'2L 

"  Brit.  Couuter  C'aHe,  p.  78  ;  Am.  App.,  vol.  vi,  p.  IWH. 

■•  Am.  App.,  vol.  vi,  pp.  ;U)8,  H'iS.  <*  Ibid,  voucher  No.  6,  p.  33L 

"  Brit.  App.,  vol.  i,  p.  74. 


E 


THE    FLORIDA. 


i  ( 


At  Na.«H:iii..Tnnnar.v 
•J.j,   lH«i3:    rece  m  h  ^ 

roJiN,    Miipiilic.H,    H(j<' 
rfrriatmi'iits. 


commander  iu  Her  Majesty's  Navy  soon  after  the  occurrence  said,  "  had 
1  met  the  Oreto  at  sea,  armed  and  havinj^-  a  pennant,  I  should  have 
taken  her  for  one  of  our  ships." ' 

She  remained  at  Mobile  until  the  15tli  of  January,  and  then  ran  the 
blockade  outwards.  Stopping  at  Havana  on  the  way  for 
forty-eight  hours,  she  arrived  again  at  ^Nassau  early  in  the 
morning,  about  day-break,  of  the  lioth.''  She  steamed  in  over 
the  bar  without  a  pilot  and  cast  anchor  without  permission  of  the  gov- 
ernor. On  his  attention  being  called  to  the  proclamation  which  required 
permission  before  coming  to  anchor.  Captain  Mafiitt "  expressed  his 
regret  for  having  unwittingly  A'iolated  the  regulations  of  the  port,*'  and 
was  taken  on  shore  by  the  adjutant  of  the  fort  in  the  Government  boat 
to  make  his  explanations  to  the  Governor.' 

lie  called  at  the  Government  House  between  eight  and  nine  o'clock, 
and  not  seeing  the  Governor,  addressed  hin»  a  note  as  follows:  "As  this 
vessel  is  in  distress  for  want  of  coal,  I  very  respectfully  request  permis- 
sion to  anchor  in  the  harbor  for  the  purpose  of  obtaining  the  same.'*' 
Permission  was  given  and  she  "  took  on  hoard  coal  atul  ])rovisions  to 
last  us  for  several  months."  -'  Her  bunkers  were  tilled  with  coal,  and  some 
placed  on  deck  and  in  every  jilace  that  could  hold  it.  The  coal  was 
taken  from  wharves  and  vessels  lying  in  the  harbor.  The  money  for 
coaling  her  was  paid  from  Mr.  Henry  Adderly's  store."  She  remained  iu 
the  harbor  until  afternoon  of  the  27th,  and  at  sunset  was  outsi<1e  of  the 
bar,  opposite  the  entrance  of  the  harbor,  "  within  a  mile  of  the  light- 
honse,  running  uj*  and  down  under  slow  steam,  with  just  steerage-way 
on  her,  apparently  waiting  for  sometiiing."'  Eleven  men  were  obtained 
there  and  shipped.  Adderly  &  Co.  paid  the  account  for  shipiung  tlie 
men,  which  was  signed  by  Captain  Matlitt.'' 

Siie  arrived  at  Barbados,  also  within  the  jurisdiction  of  Her  ^Majesty's 
Government,  on  the  li4th  of  February,  and  applied,  in  con 
sequence  of  her  having  met  with  severe  weather,  to  b( 
allowed  to  ship  some  coal  and  some  lumber  for  repairs.' 
Her  commander  assured  the  Governor  "he  was  bound  for  distant 
waters."-' 

Under  these  circumstances  she  was  permitted  to  take  in  ninety  tons 
of  coal.  On  going  into  J'arbados  the  bark  Sarah  A.  Nickels  ran  in 
before  to  avoid  capture.  The  Consul  of  l.he  United  States,  after  the  ar- 
rival of  the  Florida,  requested  that  she  might  be  detained  until  5  p.  m. 
of  the  L'5th,  in  order  to  give  the  bark  her  start  of  twenty-four  hours. 
This  was  granted.'" 

On  the  Sth  of  IMay  she  arrived  at  l*ernambuco.     A  rei)resentation  was 
made  that  her  machinery  wns  out  of  order,  and  that  it  would 
not  be  possible  to  proceed  with  safety  in  less  than  three  or 
four  (lavs.     Permission  to  remain  and  repair  was  granted,  and  she  sailed 
at2p.  m.  ofthe  12th.  " 

From  there  she  went  to  IJermuda,  where  she  arrived  on  the  loth  ot 
July,  and  where  salutes  were  exchanged  with  the  fort.  "  This 
is  the  first  salute  which  the  Hag  of  the  Confederate  States  i.\VMrr/p!i',;^",',''i 
has  ever  received  in  a  foreign  port,  and  consequently  wo 
<lwellers  iu  the  little  island  of  Bermuda  think  very  proudly  of  it.  ■  '- 


\t  lliir  .iiiin-4  Kcl. 
Mi,ii\  H,  |MH;I:  n- 
i-.'iM'.l    »i,:iN  and   r. 


vk; 


V, 


r 


1  ^>'' 


..' 


'  Am.  App,,  vol.  vi,  p.  '.V.V2, 

-Hrit.  App.,  vol.  i,  p.  7i». 

'  Iltld.,  p.  80. 

'  Hrit.  App.,  vol.  i,  '>.  77. 

■  Private  Jourual,  Am.  App.,  vol.  vi,  )).  '.Y.]'y, 

"  Affldttvit  of  'Jemeiith,  ibid.,  p.  'XW.  '- 


^  Aflidavit  of  Jackson,  ibid. 

*•  Aliidiivit  of  Soloiuon,  ibid.,  p.  :Uii. 

"  IJrit.  App.,  vol.  i,  p.  1)1. 
"'Ibid.,  p.  U.''). 

"  Hrit.  Cane,  p.  (il) ;  App.,  vol  i.  j*.  lOfi. 
Walker  to  Hiisf,  Am.  App.,  vol.  vii,  p.  iu. 


ff 


78 


ARCa'MENT    OF    THE    VNITED    8TATE8. 


Il 


At  llrest :  rt'ceiveA 
r*-i  ruits  itmi  new  lUii- 
rhiriery   from    l,i\er- 


Captain  ]Mjirtitt  "stated  that  he  liatl  been  at  sea  seventy  days,  with 
the  exception  of  two  visits  to  Havana  and  Barbados,  each  of  which  oc- 
cupied less  than  twenty-four  hours,  and  a  visit  of  shorter  duration  to  a 
port  in  the  Brazils ;  that  he  was  last  from  the  immediate  neighborhood 
of  New  York,  w  ithin  sixty  miles  of  which  he  had  been  harassing  the 
United  States  commerce ;  that  he  was  in  want  of  repairs  to  tlie  hull  and 
machinery  of  his  ship,  and  a  small  supply  of  coal.-'  ' 

Applications  were  made  for  leave  to  purchase  coal  from  and  repair  at 
the  Government  dock-yard,  which  were  refused.  She  was  permitted, 
lipwever,  to  remain  in  port  until  the  25th,  when  her  repairs  were  com- 
pleted,- and  she  took  in  ''a  full  supply  of  best  Cardiff  coal  brought 
here  from  Halifax  by  steamer  Harriet  Pinkney."  ■'  This  vessel  was 
one  of  the  insurgent  "  trans[)orts."^  The  conduct  of  the  Governor  was 
approved  by  the  Government  September  10. '* 

The  Florida  arrived  at  Brest,  France,  on  the  23d  of  August.  "  in 
order  that  her  engines  and  copper  sheathing  might  be  re- 
paired."" She  renmined  until  the  9th  of  February,  1804.  ■ 
Captain  Mattitt,  on  the  3d  of  September,  sent  to  Captain 
Bullock,  '•  Confederate  States  Navy,  Liverpool,"  a  list  of  men  discharged 
from  her  with  their  accounts  and  discharges.  .Many  of  them  asked  for 
"transportation,  and  others  for  reference  to  you  [Bullock  |  or  to  a  Confed- 
erate agent.""  These  men  went  to  Liverpool,  and  were  paid  oif  in  Octo- 
ber, 1803.'' 

At  Brest,  Captain  Mattitt  left  the  ship  and  Captain  Barney  took  com- 
mand. On  the  22d  of  September,  Frazer,  Trenholm  »S:  Co.  and  .h  11. 
Armstrong  wrote  fron>  Liverpool  to  the  new  Captain  as  follows  : 

We  bej?  to  acknowledge  the  receii»t  of  yonr  fiivor  of  the  If^th  instant,  the  contents  ot 
which  we  have  noted,  and  will  have  our  best  attcnti<»n.  We  an;  informed  by  Messrs. 
Fawcett,  I'reston  &  Co.,  the  builders  of  the  engines  of  the  Florida,  that  the  spare 
machinery  to  which  yon  refer  was  sent  to  Jlavre  some  time  ago,  and  is  now  lying  there 
subject  to  an  order  for  delivery,  which  tiiey  have  given  to  Captain  liuUock.  We  are 
also  informed  by  the  same  parties  that  they  sent  a  blower,  bnt  they  believe  it  is  not 
the  sort  required,  and  they  arc  now  endeavoring  to  procure  a  more  suitable  one.  As 
regards  the  engineers,  we  must  .iwait  Captain  liullock's  return  to  know  who  the  men 
are.  We  have  requested  Messrs.  Fawcett,  Preston  &  Co.  to  engage  two  or  three  good, 
steady  tirenum ;  and  as  soon  as  Captain  Ihillock  arrives  (on  the  24th)  we  will  endeavor 
to  have  engiueers,liremen,  and  machinery  sent  to  you,  and  by  tlie  route  you  suggest."'" 

The  same  parties  were  in  frequent  correspondence  with  the  paymaster 
of  the  vessel  at  Brest  in  respect  to  her  tinauces."  A  full  crew  was  sent 
to  her  from  London  and  Liverpool  in  January,  and  "two  steel Blakely 
rifled-guns  with  steel-pointed  elongated  shot  to  lit  them."'-  She  sailed 
from  Brest  under  the  command  of  Captain  Morris. 

On  the  2Gth  of  April  she  was  at  Martinique  for  coal  and  provisions. 
On  the  13tli  of  jVlay  she  stopped  at  Bermuda  to  land  a  sick 
officer  and  to  obtain  news.'^  On  the  18th  of  June  she  ap- 
peared at  that  port  again,  when  she  asked  permission  to  take  in  coal 
and  eft'ect  some  repairs."  Permission  was  given  her  to  remain  five  days 
after  the  21st.  She  quitted  the  harbor  on  the  27th,  but  remained  cruising 
about  the  island  until  the  otli  of  July,  when  she  was  seen  from  the  land.'^ 


At  AI:irtiiU(iiu\ 


'  Gov.  Ord.  to  Duke  of  Newcastle,  JJrit.  App.,  vol.  i,  p.  108. 

-  Brit.  Case,  p.  (59  ;  App.,  vol.  i,  p.  111. 

-'  Am.  App.,  vol.  vi,  p.  'M7  ;  Brit.  Case,  p.  70  ;  App.,  vol.  i,  p.  108. 


^  Am.  App.,  vol.  i,  p.  73'2. 

'Brit.  App.,  vol.  i,  p.  111. 

"  Brit.  Case,  p.  70. 

'  Ibid.,  p.  72. 

"Am.  App.,  vol.  vi,  p.  :t49. 

9Brit.  Ai»p.,  vol.  i,  pp.  Uf,  122. 


'"Am.  App.,  vol. 

"  Ibid.,  p.  ;i.')4. 

'-'  Ibid.,  p.  :j.j:{. 

' '  Brit.  App.,  vol.  i,  p.  1:52. 

nibid. 

'5  Ibid.,  p.  133; 


vi,  p.  3r>2. 


Am.  App.,  vol.  vi,  p.  350. 


TIIK    FI.()[MI>A. 


79 


While  tlu'iv,  on  the  L'Tth  of  -huie,  l.'i."*  tons  of  coal  weii'  \m'h\  lor  by  (1. 
P.  Bhick,  who  was  toinpoiarilv  actiug  as  the  agent  for  the  "  Confederate 
States."  I 

A  draft  for  i;S,.")00  srerlin<>'  on  Captain  linllock  was  discounted  by  this 
same  agent,  and  money  to  the  amonnt  of  more  tlian  C(5()0  expended 
for  repairs  and  supplies. ' 

From  J3ermuda  she  went  to  IJahia  where  she  ended  her 
cruise  in  the  month  of  October. 

It  will  thus  be  seen,  that  the  flrst  port  which  was  visited  by  the  Flori- 
da after  her  escai)e  from  Xassau  was  under  the  Jurisdiction  of  the 
government  of  Si)aiii.  At  this  port  she  escaped  seizure  for  a  violation 
of  the  sovereignty  by  "  repudiating"  the  act. 

After  leaving  3lobile  she  touched  at  Uavana,  but  does  not  appear  to 
have  taken  in  coal  or  supplies.  Theji  she  went  to  Xassau,  then  to  Bar- 
bados, then  to  Pernambuco,  then  to  Bermuda,  then  to  Brest,  within 
reach  of  her  base  of  supplies  at  Liverpool;  then  toMartiniiiue,  then  to 
Bermuda,  and  then  to  Bahia.  After  leaving  Mobile,  she  visited  once 
the  ports  of  Spain,  twice  those  of  France,  twice  those  of  Brazil,  and  four 
times  those  of  Great  Britain. 

During  her  cruise  she  commissioned  at  different  times  three  tenders, 
the  Clarence,  the  Tacony,  and  the  Archer.     For  their  acts 
she  is  liable  as  for  her  own.     She  was  the  principal,  and 
their  acts  were  her  acts. 


'  Am.  Ap]).,  vol.  \  i 
vol.  i,  p.  i:i:'.. 
-Am.  App..  vol.  \  i,  [). 


p.  :>.")',):  Actiiij;' tiovmiioi-  Monroe  to  Mr.  Caiclwell,  IJiitish  App., 


rl 


■eq. 


h  ' 


*     tl 


ap- 
!oal 


> 


'k 


I    ft 


VII.-THK  ALABAMA. 


As  to  this  vessel,  Her  Majesty's  Govermneiit  admits,  "that  at  the  time 
when  she  sailed  from  England  in  July,  1862,  she  was,  as 
.,i!,l',y,,^oya  Iva"'.'  regards  tlie  genera/  character  of  her  constructiou,  specially 
MiJisiut.i.  adapted  for  warlike  use;   that  the  adaptation  had  been 

eft'ected  within  British  Jurisdiction;'"  and  that  "the  general  construc- 
tion of  the  vessel  was  such  as  to  make  it  api)arent  t!iat  she  was  intend- 
ed for  war  and  not  for  commerce."'- 

The  drawings  found  among  the  archives  of  the  insurgents  signed  by 
the  Messrs.  Laird,  as  early  as  the  9th  October,  ISUl,  copies  of  Avhicii 
are  part  of  the  documents  and  evidence  filed  by  the  United  States  with 
their  (Counter  Case,  show  conclusively  that  she  never  was  intended 
for  anything  else  than  a  vessel  of  war. 

It  is  also  admitted  in  the  British  Counter  Case  that  "  the  question  for 
Th  ,i,u,tmni.i    the  arbitrators   is,   whether  the  British  Clovernment  had, 
u«.ueu.  according  to  the  fair  and  just  sense  of  those  words,  reason- 

able grounds  to  believe  that  she  was  intended  to  carry  on  war  against 
the  United  States ;  and  having  it,  failed  to  use  such  diligence  as  any 
international  obligation  required  to  prevent  her  departure  from  Great 
Britain,  or  to  prevent  her  equipment  within  its  Jurisdiction."  ' 

The  United  States  will  now  proceed  to  consider  the  facts  necessary 
to  a  decision  of  that  (piestion,  and  for  that  purpose  will  use  almost  ex- 
cusively  the  evidence  presented  to  the  Tribunal  by  Her  Majesty's  Gov- 
ernment. 

As  has  been  seen,  tln^  Florida  sailed  from  Liverpool,  without  any 
attempt  at  her  detention  by  the  Government,  ou  the  22d  of  March,  1802. 
The  attention  of  Earl  Russell  had  been  called  to  her  by  Mi*.  Adams 
more  than  a  month  previous  to  her  departure,  and  in  so  doing  he  de- 
clared that  his  opinion  as  to  her  destination  for  war  against  the  United 
States  was  based  upon  the  "  evidence  furnished  in  the  names  of  the 
persons  stated  to  be  concerned  in  her  construction  and  outfit.''  These 
persons  named  were  Fawcett,  Preston  &  Co.,  and  Frazer,  Trenholni  & 
Co.  As  late  as  the  0th  of  May,  the  Foreign  Office  appears  to  have  been 
in  correspondence  with  the  ofiicers  of  the  Treasury  in  respect  to  her 
escape.^  She  arrived  at  Nassau  on  the  28th  of  April,  and  her  arrival  at 
that  port  became  known  in  Liverpool  and  was  announced  in  the  Liver- 
pool Journal  of  Commerce  on  the  27th  of  May.''  It  must  ]>ave  been 
apparent,  at  that  time,  to  the  ofiicers  of  the  customs  at  Liverpool,  that 
she  had  not  been  intended  for  the  Italian  Government,  but  for  the  in 
surgents,  and  that  any  pretense  of  Italian  destination  was  false. 

Under  these  circumstances,  on  the  23d  of  June,  Mr.  Adams,  in  a  note 
to  Earl  Kussell,  said  : 

Some  time  since,  it  may  be  lecollocted  by  your  Lordship,  tliiit  I  felt  it  my  duty  to 


'  Brit.  Counter  Case,  p.  80. 

•^  Hrit.  Case.  p.  118, 

'  Ikit.  Counter  Case,  j).  80. 

^  Brit.  App.,  vol.  i,  p.  9. 

'•Dudley  to  Seward,  Am.  App.,  vol.  vi,  p.  23S. 


THE    ALABAMA. 


81 


make  a  ropresentatioii  touching  tbo  cfinipinei.t  from  tho  port  of  Liverpool  of  the  ^nn- 
hoiit  Oreto,  with  tlie  intent  to  make  war  upon  tlie  I  nited  States.  „  . , 
Xotwitlistanuing  tlie  statements  returned  from  the  authorities  of  that  r.fMrnii,ii..noi,  j..n.- 
jilace,  with  which  your  Lonlship  favored  me  in  reply,  touihin]i(  a  dif-  -'""'^ 
fereiit  destination  of  that  vessel,  I  have  the  stronj^est  reason  for  lulit  viiifj  that  that 
vessel  went  directly  to  Nassau,  and  that  she  had  been  there  enj;agod  in  completing  her 
armament,  provisioning,  and  crew  for  the  object  tirst  indicated  by  me. 

lam  now  under  the  painful  necessity  of  ap|)rising  your  ijordship,  that  anew  and 
still  more  powerful  war-steamer  is  n(>arly  rt^ady  for  (leparturo  from  tl\e  jiort  of  Liver- 
pool on  the  same  errand.  This  vessel  has  Ix-en  built  and  lannclu'd  from  the  dock-jard 
of  persons,  one?  of  whom  is  now  sitting  as  a  member  of  the  House  of  Commons,  ami  is 
iitting  out  for  theesjiecial  and  manifest  object  of  carrying  on  hostilities  liy  sea.  *  *  " 
The  parties  engaged  in  the  enteritrist!  are  persons  well  known  at  Liverpool  to  be 
agents  and  oClioers  of  the  insurgents  in  the  I'nitcd  States,  the  natnrt^  and  ext(Mit  of 
whose  labors  an^  well  exi)laiued  in  tlui  eoi>y  of  iin  intercepted  letter  of  one  of  iliem, 
which  I  received  from  my  fJovernment  some  days  iigo,  iind  which  1  fiad  the  honor  to 
|iliice  in  our  Lordship's  hands  on  Thursday  lust.  J  now  ask  ])einiissio!i  to  transmit, 
tor  your  consideration,  a  letter  addressed  to  me  by  th(>  Consul  of  the  I'nited  States  at 
Liverpool  in  conlirn\ation  of  the  statements  here  submitted,  and.  to  solicit  such  action 
us  niuy  ten<l  either  to  stoj)  the  projected  expedition  (U'  to  establish  the  fad  that  its 
purpose  is  not  inimical  to  tin,'  people  of  the  I'liited  States.' 

Tlie  iiitercoptod  letter  referred  to  was  from  Caleb  lltisc,  "Captain  of 
Artillery,"  to  Major  J.  (;orj>as,  "  Confederate  State.s  Artillery,  War 
Department."'  It  is  said  iti  tlie  Case  presented  by  Her  Majesty's  Gov- 
ernment,- that  the  eopy  of  the  intereepted  letter  referred  to  "  was  ii 
])aper  purporting  to  lie  a  eoi)y  of  a  letter  or  rop«)rt  from  a  Confederate 
otticer  of  artillery,  addressed  to  some  person  unknown,"  and  what  i»ur- 
ports  to  be  a  copy  of  the  lettei'  itself  is  itrinted  in  Ibitish  Ai)pendix, 
vol.  i,  p.  178,  without  the  name  of  the  party  to  whom  it  was  addressed. 
The  same  letter  is  printed  by  the  United  Stat<'s  in  tlieir  Aiipendix,  vol. 
i,  ]).  ^)oS,  where  the  name  of  the  p(>r.son  to  whom  it  was  addressed 
appears.  It  was  transmitted  by  ^Ir.  Seward  to  ^ir.  A<lams  with  a  dis- 
piitch  under  date  of  June  2,  in  which  he  says:  ' 

Tliere  has  just  now  fallen  into  oui'  hunds  a  very  extraordinary  ilecmuent,  being  a 
report  made  by  Caleb  Huse,  who  calls  himself  a  captain  ot'  artillery,  and  who  is  an 
agent  of  the  insurgents  in  Einope,  to  the  chief  of  tlu*  artillery  of  tht;  SVar  Dei»artmeut 
of  the  instirgents. 

The  letter  was  "  placed  in  the  hands"  of  Earl  Russell  by  Mr.  Adams 
on  the  Thursday  which  preceded  the  23d  of  June,^  and  inasmuch  as  the 
dispatch  of  Mr.  Seward  transmittiuj;  it  stated  in  terms  to  whom  it  was 
addressed,  tliere  cau  scarcely  be  a  doubt  that  if  the  copy  omitted  his 
name,  the  proper  explanation  Avas  made  by  Mr.  Adams  at  the  time.  So 
that  it  is  hardly  to  be  supposed  that  the  party  addressed  was  unknown 
to  Earl  Russell  at  the  time  he  received  31r.  Adams's  letter  of  the  23d  of 
Jime,  although  it  may  have  been  to  the  persons  who  prepared  the 
British  Case. 

The  letter  is  fouiul  in  the  Uritish  Appendix,  vol.  i,  ]>.  178.  It  bears 
date  April  1,  18G2,  at  Liverpool,  a  few  days  after  the  vsailing  of  the 
Oreto,  and  does,  as  is  stated  in  the  British  Case,^'  relate  "  to  purchases 
of  military  supplies  for  the  Coufederate  army  and  to  vessels  employed 
in  blockade  running.''  It  also  states  that  "  Messrs.  Eiazer,  Trenholin 
iJc  Co.,  of  this  city,  placed  at  my  disposal  a  fine  ship,  the  Bahama,  which 
1  supiiosed  would  take  all  the  batteries."  This  is  the  same  vessel 
which,  as  has  been  seen,  took  out  the  armament  of  the  Oreto,  and  which 
afterward  took  out  that  of  the  Alabama. 

In  the  letter  of  the  consul  of  the  United  States  at  Liverpool,  trans- 


'  Hritish  Case,  p.  8L 

•  Page  HL 

'Am.  App.,  vol.  i,  p.  537. 

Oc 


*  Brit.  Case,  p. 
•■Page  81. 


8L 


tV 


5i 


;, 


TT- 


82 


AROUMKNT    OF   TWK    I'MTi:!)    STATES. 


s '. 


71 


r aituiii  iipun  it. 


mittod  l».v  Mr.  Adams  to  I^aii  K'lisscll,  on  t\w  L'.'M,  it  Wiissaid:  "TIic 
evidoiie*.'  J  Iiavt'  is  (Mitiicl.v  conclusive  to  my  niiii<l.  I  do  not  think  there 
is  tlie  least  roon*  for  doubt  almut  it.  *  *  *  Tlie  stri(;test  watch  is 
kept  oxer  this  vessel ;  no  ])erson  except  those  inimediately  enj;ajied 
upon  lier  is  admitted  into  the  yard.  On  the  occasion  of  the  trial-trip, 
nmde  last  Thursday  week,  no  one  was  admitted  without  a  pass,  anil 
these  i)asses  were  issued  to  but  few  [X'rsons,  ami  those  who  are  known 
here  as  active  secessionists  enfiajii'd  in  sendiniii'  aid  and  relief  to  the 
rebels."  Jle  also  stat<'d  that  "  the  forenuin  in  Messrs.  JiUird's  yard  .says 
she  is  th(^  sister  to  the  •■un-boat  Oreto,  and  has  been  Itnilt  for  the  same 
l)arties  and  for  the  same  i)nrpose  ;  when  pressed  for  a  further  explana- 
tion, he  stated  that  she  was  to  be  u  i)rivateer  for  the  Southern  Govern- 
ment in  the  Tnited  States."  And  the  Consul  further  stated  that  cer- 
tain ot1i(;ers  from  the  Hnmter,  whose  names  he  gave,  had  said  the  vessel 
was  being-  built  for  the  Confederate  States.' 

This  letter  of  Mr.  Adams  with  that  of  the  Consul,  was  referred  by  Earl 
11,1. rr.. I  t.>  inw   KusscUto  tlic  La W-Ofliccrs  of  tlic  Cro wu  and  to  the  Lords 
"*'•■""'"'*■ '^"'""  Commissioners  of  the  Treasury,  on  the  L'oth  of  June,  of 
which  Mr.  Adams  was  duly  advised.^ 

Ou  the  30th  flune  the Law-Oflieers  reported  toEarlUussell  that  "the 
re] >ort  of  the  United  States  Consul  at  Liverpool,  *  #  * 
besides  suggesting  other  grounds  of  reasonable  susjiiciou, 
contains  direct  assertion  that  the  foreman  of  ^Messrs.  Laird,  the  builders, 
has  stated  that  this  vessel  is  intended  as  a  privateer  for  the  service  of 
the  government  of  the  Southern  States ;  and,  if  the  character  of  the 
vessel  and  of  her  ecpiipment  be  such  as  the  same  report  describes  them 
to  be,  it  seems  evident  that  she  must  be  intended  for  some  warlike  pur- 
pose. Under  these  circumstances,  we  think  that  proper  steps  ought  to 
be  taken,  under  the  direction  of  Ifer  Majesty's  Government,  by  the 
authorities  of  the  customs  at  Liverpool,  to  ascertain  the  truth,  and  that, 
if  euflicient  evidence  can  be  obtained  to  justify  proceedings  under  the 
foreign-enlistment  act,  such  i)roceedings  should  be  taken  as  earlj-  as 
possible.  In  the  mean  time,  ^Ir.  Adams  ought,  we  thiidc,  to  be  informed 
that  Her  ]\lajesty''s  Government  are  i)roeeeding- to  invstigate  the  case  ; 
but  that  the  course  w  Inch  they  may  eventually  take  nuist  necessarily 
depend  ui)on  the  nature  and  suHicieucy  of  any  evidence  of  a  breach  of 
the  law  wliich  they  may  be  enabled  to  obtain;  and  that  it  will  be  de- 
sirable that  any  evidence  in  the  possession  of  the  L'nited  States  Consul 
at  Liverpool  should  be  at  once  comuumicated  to  the  ollicers  of  Her 
^Majesty's  customs  at  that  port."'' 

The  Lords  Commissioners  of  the  Treasury  sent  the  letter  of  ^Mr.  Adams, 
with  that  of  the  Consul,  to  the  Commissioners  of  Customs  on  the  I'.jth  of 
June.*  These  letters  were  forwarded  by  the  Commissioneis  to  the  Col- 
hector  of  Liverpool  previous  to  the  2Sth.^  But  before  that  time,  on  the 
20th,  and  before  the  letter  of  the  Consul  to  Mr.  Adams,  or  that  of  ]\L'. 
Adams  to  Earl  Kussell,  the  Collector's  attention  had  been  called  to  the 
same  vessel  by  the  Consul  in  a  letter  to  him,"  in  which  was  detailed, 
with  more  particularity  than  in  the  letter  to  Mr.  Adams,  his  knowledge 
of  facts  an<l  his  grounds  of  suspicion.  This  letter  the  Collector  must 
have  had  when  he  received  the  communication  from  the  Commissioners. 


'  Rrit.  Casi\|).  81.  '  Brit.  Case,  p.  83. 
Ubid.,  p.  ^',>. 

^Lfttor  fioni  Mr.  Arbntlmot  to  Mr.  Hammond,  July  '2,  l?iit.  Ajip.,  vt)l.  i,  ]>.  Irtl. 

■'Brit.  App..  vol.  i,  p.  \<s.  'Am.  Ajtp.,  vol.  vii,  p.  7:?. 


i^i| 


THE    ALAliAMA. 


83 


On  the  l-'Stli  of  Juno  tlio  customs  surveyor  at  t'lo  ])ovt  of  Liverpool 

rt'l»oi'U'(l  to  tliL' Collcc'tor  "that  the  vessel  to  ■.■.hieh  these     ,,,„, ,„niv,M. 

liai)ers  refer  has  not  escaped  the  notice  of  the  customs  '""^ ""'""'i'""- 
otlicers,  l»ut,  as  yet,  nothing?  has  transpired  eoncerninj;'  her  whicli  ap- 
])eared  to  d«'mand  a  special  report.  The  olTicers  have  at  all  times  free 
access  to  the  building-yards  of  the  3Iessrs.  Laird,  at  IJirkenhead,  where 
the  said  vessel  is  now  lying,  r.nd  tliere  has  been  no  attempt  on  tlie  part 
of  her  builders  to  disguise,  what  is  most  api)arent  to  all,  that  she  is  in- 
tended for  a  ship  of  war.  Agreeably  with  your  directions,  1  have  person- 
ally inspected  her  and  iind  that  she  is  rightly  described  in  the  commu- 
ni('ation  of  the  United  States  Consul,  except  that  her  engines  are  not  on 
the  oscillating  principle.  *  *  *  The  current  report  of  that  vessel 
is  that  she  has  been  built  for  a  foreign  government,  and  that  is  not 
denied  by  the  Messrs.  Laird,  with  whom  1  have  communicated  on  the 
subject;  but  they  do  not  appear  disposed  to  reply  to  any  <|uestion  with 
reference  to  the  destination  of  the  vessel  after  she  leaves  this  port,  and 
we  have  no  other  reliable  source  of  information.  It  will  be  in  your  re- 
collection that  the  current  report  of  the  gunboat  Oreto  was,  that  she 
had  been  built  for  a  foreign  government,  which  vessel  rc^cently  left  thii4 
port  under  a  British  Hag,  without  any  guns  or  ammunition  on  board, 
as  previously  reported."' 

This  rei>ort  was  transmitted  by  the  collector  to  the  commissioners  of 
customs  on  the  same  day  (the  "iSth)  and  by  them  referred  to  the  solic- 
itor of  customs,  who,  on  the  oOth,  (the  same  day  that  the  Law-Otlicers 


made  their   communication  to  Earl  Kussell,  as  Just  stated, 


his 


opinion  tiiat  "  the  ollicers  at  Liveroool  have  acted  discreet!}'  in  keeping 
watch  upon  her,  and  should  continue  to  do  so,  inuuediatel^'  reporting  to 
tlie  board  any  circumstances  that  they  may  consider  to  call  for  direc- 
tions, or  advisable  to  bring  under  the  board's  notice ;  but  the  officers 
ought  not  to  :  :)ve  in  the  matter  without  the  clearest  evidence  of  a  dis- 
tinct violation  of  the  foreign-enlistment  act,  nor  unless  at  a  moment  of 
great  emergency,  the  terms  of  the  act  being  extremely  technical  and 
the  requirements  as  to  intent  being  very  rigid.  It  may  be  that  the  ship, 
having  regard  to  her  cargo  as  contraband  of  war,  might  be  unfjuestion- 
ably  liable  to  capture  and  condemnation,  yet  not  liable  to  detention  uiuler 
the  foreign-enlistment  act,  and  the  seizers  might  entail  upon  themselves 
very  serious  consequences.*' - 

On  the  1st  of  July  the  commissioners  of  customs  transmitted  their 
own  rei»ort  to  the  Lords  Commissioners  of  the  Treasury,  in  which  they 
embodied  the  substance  of  the  report  ot  the  surveyor  to  the  collector, 
including  his  statement  that  the  builders  di<l  not  appear  disposed  to  re- 
])ly  to  any  questions  respecting  the  destination  of  the  vessel  after  she 
left  Liverpool,  and  added  that  ''  having  referre<l  the  matter  to  our  solic- 
itor, he  has  reported  his  opinion  that,  at  present,  there  is  not  sufficient 
ground  to  warrant  the  detention  of  the  vessel,  or  any  interference  on 
the  part  of  this  department,  in  which  report  we  beg  leave  to  express  our 
concurrence.  And,  with  reference  to  the  statement  of  the  United  States 
Consul,  that  the  evidence  he  has  in  regard  to  this  vessel  being  intended 
for  the  so-called  Confederate  Government  in  the  Southern  States,  is  en- 
tirely conclusive  to  his  mind,  we  would  observe  that,  inasmuch  as  the 
otlicers  of  customs  of  Liverpool  would  not  be  justifled  in  taking  any 
steps  against  the  vessel,  unless  sufficient  evidence  to  warrant  her  deten- 
tion should  be  laid  before  them,  the  proper  course  would  be  for  the  con- 
>*ul  to  submit  such  evidence  as  he  possesses  to  the  collector  at  that  port, 


%    , 


■    U 


;  M 


'  Brit.  App.,  vol.  i,  p.  163. 


-  Ibid. 


84 


ARGl'MKNT    OF    TEIE    IJXITKD    STATES. 


Avho  would  tlK'ieupon  take  siicli  iiioasiiros  as  tlio  proviHious  of  the  for- 
ci^n-onlistnH'nt  act  would  le^iuiro.  AV'itlioiit  tlui  production  of  lull  and 
suniciciit  evidence  to  justify  their  proceedings,  the  seizing  oflicers  might 
entail  on  themselves  and  on  the  Government  very  serious  eonseciuences. 
Wo  beg  to  add  that  the  oiticers  at  Liverpool  will  keep  a  strict  watch  on 
the  vessel,  aiul  that  any  further  information  that  may  be  obtained  con- 
cerning her  will  be  forthwith  reported.'" 

This  report  of  the  commissioners  of  customs  was  transn.itted  by  the 
Lords  Commissioners  of  the  Treasury  to  the  Foreign  Oftice,  and  received 
there  on  the  2d  of  ,Iuly.  ^ 

Thus  it  will  be  seen  that  twenty  seven  days  before  the  departure  of 
the  vessel.  Her  ^Alajesty's  (lovernment  was  informed  by  its  own  otticers 
that  the  "  character  of  the  vessel  and  of  her  equipnuMit "  was  such  as  the 
rei)ort  of  the  consid  described  them  to  be,  and  that,  therefore,  in  the 
opinion  of  the  Law-Oflicers  of  the  Crown,  "she  must  be  intended  for 
sonte  warlike  i)urpose."  And  the  (lovernment  was  also,  at  the  same 
time  and  in  the  same  manner,  iulbrmcd  that  in  the  liu^e  of  what  had 
been  acknowledged  by  the  Law-Oflicers  of  the  Crown  lobe  "grounds  of 
reasonable  susi)icion  "  of  the  Consul,  the  builders  of  the  vessel,  (a  tirm, 
one  of  the  ostensible  members  of  which,  at  the  time  of  theoiiginal  c(m- 
tract  for  her  building,  was  a  member  of  the  LTonse  of  Commons,)  •  on 
being  intpiired  of  by  one  of  the  olbcers  of  the  (Jovernment,  <litl  not  ap- 
pear to  be  ilLynhscd  to  npli/  to  ani/  >iuestioii  a-itk  rifereiitr  to  the  dvsti nation 
of  the  ressel  after  she  left  Liverpool. 

At  the  same  time,  too,  one  at  least  of  the  departments  of  the  (lovern- 
ment was  reminded  by  one  of  its  otticers  that  the  Oreto,  referre<l  to  in 
the  letter  of  3Ir.  Adams,  had  recently  left  the  port,  built  for  a  foreign 
government,  but  "  under  a-  JJritish  flag,  without  any  guns  or  ammuni- 
tion on  board."  Ihit  the  Arbitrators  will  look  in  vain  for  any  evidence 
whatever  tending  to  prove  that  any  oflicer  of  the  (lovernment,  of  any 
grade,  ever  i)r«)itounded  to  the  builders,  or  any  other  person,  a  direct 
question  as  to  the  destination  of  the  vessel,  insisting  uiK)n  an  answer 
or  a  refusal  to  answer.  This,  too,  when,  under  the  opinion  of  tiie  Law- 
OflUcers,  tlie  only  nuiterial  fact  renmining  to  be  ascertained  was,  by  whom 
the  vessel  was  to  be  emi»loyed. 

A  copy  of  the  report  of  the  conwinssioners  of  customs  was  sent  by 

Earl  Kussell  to  IMr.  Adams,  accompanied  by  a   note  which 

p,itPK,ii'hr'Am'en!'!M  bcars  date  the  4th  of  July,  but  which  does  not  ai)pear  to 

l',Xm.'u?..;^^'i'a'M  have  been  received  until  the  7th,  when  it  was  acknowledged. 

' '" '  In  this  note  Earl  llussell  says  :  "  1  would  beg  leave  to  sug- 

gest that  you  should  instruct  the  United  States  Consul  at  Liverpool  to 
submit  to  the  collector  of  customs  at  that  port  such  evidence  as  he 
may  jmssess  tending  to  show  that  his  suspicions  as  to  the  destination  of 
the  vessel  in  <iuestion  are  w  ell  founded.''  ^ 

This  was  the  first  re<piest  ever  made  of  Mr.  Adams  or  any  other 
oHicer  of  the  (Tovernment  of  the  United  States,  to  assist  the  Govern- 
ment of  Iler  Majesty  in  procuring  testimony  against  any  vessel  as  to 
which  complaint  had  been  m.ade.  As  has  been  seen,  Mr.  Adams  offered 
the  assistance  of  the  United  States  in  respect  to  the  Florida,  but  his 
otter  was  not  accepted.  Down  to  this  time,  therefore,  no  comidaint 
should  be  made  against  the  United  States  because  they  failed  to  accom- 
pany their  representations  with  proof.    But  tlie  United  States  believe 


'  Brit.  Caso,  p.  K5. 
«Biit.  App.,  vol.  i,  p.  181. 


'  Hiit.  App.,  C'oiuitci'  Case,  vol.  v,  p.  2()A. 
*  I5rit.  Cu.'^e,  p.  H4. 


THK    ALAnA>rA. 


«5 


k)4. 


titer 

erii- 

I    f 

s  to 

rTed 

f.   -■ 

Ml       -1 

;  bis 
aiut 

f  ■    ^ 

;oui- 

levo 

that,  ill  view  of  f'jicts  alroadv  staled,  tlu^  Arbitrators  will  fool  as  did  the 
Consul  wlien  lie  rccoivt'd  notice  from  .Mr.  Adams  of  what  was  re(|uired, 
and  addressed  the  Secretary  of  State  of  his  (Jovernment  in  the  follow- 
inj(  lanyuaye : 

1  do  not  tliiiik  tlic  Uritisli  (iovcrmiiciit  a''t>  ticiitiiii;  iix  iJi'njicrly  in  lliis  inattt  r.  Tlicy 
artniot  dciiliiiif  with  iis  as  one  IViciiilly  nation  on^lit  to  deal  with  anotlnT.  Wlicn  I, 
as  tilt'  a;;'tMit  of  my  ( Jovi^iinniMit,  tell  tlit'in  from  t-vidciici'  siiUniil ted  to  nn^  tliat  I  liavo 
no  donbt  about  hiT  characttT,  tlicy  onylit  ti>  a((i'i)t  tliis  until  tin;  i»ai tit's  who  ai'u 
liuiitlin;j;  hiT,  anil  wlio  havti  It  in  tln'ir  powiT  to  sht)w  it'  ht-r  ili'stination  and  ])nii)o»o 
are  it'^^itiniatf  ami'lioni'st,  <h>  so.  It  is  a  very  easy  n\atti'i'  to-  tht;  Mt'ssis.  Laii'il  ».V  Ct). 
Id  sliow  lor  whom  tlu'y  an;  hniltliuj;;  litT.  ami  to  ;j;iv'i'  suidi  ii  (ormation  as  to  hi'V  ])ur- 
jiosc  as  ttj  l»t;  satist'attory  to  all  jiartifs.  Thf  hnith.m  ot  jirtiot  oii;;lit  not  ti>  \tv  thrown 
iilitui  us.  In  a  hostile  t;ommunity  liUti  this  it  is  xt-ry  iliriiciilt  to  ^nt  iuforniatitm  at 
any  tiiui'  U|ii>n  thesis  niatti'is.  And  it'  namcH  art'  to  bf,  nivcn  it  would  rt'iitlcr  it 
almost  iimiossiMf.  Tlif,  (ii)vt'riiiiiciit  onj;ht  tt»  invfsti;;ato  it  and  not  call  11)1011  us  for 
liroofJ 

And  tliey  will  not  be  surprised  tint  two  days  after,  the  Consul  wrote 
Mr.  Adams  asfollow.s: 

When  tilt'  I'nitetl  Statt's  Govornnn'iit,  11iron;;h  its  acknowlt'd;rfd  ri'im^stintativfs,  say 
to  thi^  Mi'itish  Govi'iuniont  that  it  is  satislift]  that  a  iiartifular  vt^ssi'l,  which  is  Itcinjf 
Iniilt  at  a  t'citaiii  iilai;c  in  the  Uiuj^doni  by  certain  partitas  who  art;  thi'ir  own  .subjects, 
is  iiitcntb'tl  as  a  piivatetM'  I'tn'  the  icbcl  (;-ovt'riiinont,  it  is  tlio  duty  of  that  <;ovorniiient 
to  call  nj)  tht^  pai'tit's  who  are  litti:'.<f  out  the  vesstd,  tell  them  what  the  char;^*!  is,  and 
require  them  tt)  state  tor  wht)in  and  what  piirjitwe  she  is  beiii"' built,  and  if  tlie  clnu'so 
is  admitteil  or  siiown  to  be  true,  to  Htt)p  her  sailin;;-.  Our  (rt)vernment  has  a  rij^ht,  it 
seems  tt)  me,  iit>t  only  to  expect  l)nt  tt»  ret|uirt^  this  inmdi  of  ant)ther  friendly  ;;overn- 
iiitMit,  Ami  if  there  was  any  disposition  to  do  rij;ht  ami  act  ht)ncstly,  this  uinch  at 
least  would  be  accordeil.- 

On  the  7th  of  July,  and  at  once  upon  the  receipt  of  the  letter  of  Earl 
Tvussell,  Mr.  Adams  wrote  the  vice-consul  at  Liverpool,  in    Th-™,,,,,!  .hr-d- 
the  absence  of  the  (Jousul,  transmittinof  t.  copy  of  tiie  letter  ';:!,u:iJ'Zl''uJ'foi- 
of  his  lordship,  and  in  accordance  with  the  suggestion  '""" 
tlierein,  said : 

"I  pray  you  to  furnish  to  the  collector  of  custonLs,  so  .soou  as  may  be,  any  evidcuco 
which  you  can  readily  command  iu  aid  of  the  object  designated."' 

On  the  9tli  of  July  the  consul,  having  returned  to  Liverpool,  addressed 
a  letter  to  the  collector  at  that  port,  iu  which  lie  detailed 
with  great  particularity  the  circumstances  which  bad  come 
to  his  knowledge  teuding  to  show  that  the  vessel  was  iutended  for  the 
use  of  the  insurgents.  This  letter  is  printed  in  full  in  the  Britsb  Case,* 
and  is  explicit  in  its  statements.  It  certainly  made  a  case  which  was 
worthy  the  attention  of  the  Government.  The  Consul  does  indeed  say- 
that  he  cannot,  in  all  cases,  state  the  names  of  his  informants,  "as  the 
information  in  most  cases  is  given  to  me  by  persons  out  of  friendly" 
feeling  to  the  United  States,  and  in  strict  confidence;"  but  he  adds: 
"  What  I  have  stated  is  of  such  a  character  that  little  inquiry  will  con- 
firm its  truth;"  and  the  names  of  many  jier-sons,  all  of  whom  were 
within  reach  of  the  officers,  were  given  to  whom  impiiries  might  have 
been  addressed. 

He  then  says,  the  Messrs.  Laird  "  say  she  is  for  the  Spanish  Govern- 
ment. This  they  stated  on  the  3d  of  April  last,  when  General  Bur- 
goyne  visited  their  yard,  and  was  shown  over  it  and  the  various  vessels 
being  built  there,  by  Messrs.  John  Laird,  Jr.,  and  Henry  H.  Laird,  as 
was  fully  reported  in  the  papers  at  the  time."  On  this  point  the  Consul 
says  he  caused  inquiries  to  be  made  of  the  Spanish  minister  as  to  the 
truth  of  the  statement,  and  thi'  reply  was  a  positive  "  assurance  that 


Ho  iloen  so. 


'Am.  App.,voI.  vi,p.  382. 
*  Am.  App.,  vol.  vi,  p.  :38(i. 


'  Brit.  App.,  vol.  i,  p.  242. 


Jf 


" 


!    ' 


^  Page  81. 


8G 


AKdlMKNr    Ml'    Tin:    I'MTKD    STATES. 


ii 


1"! 

i 
I 


t'OMili  I  !      Ill       tl 
collfrtor. 


slio  was  not  for  tlio  Spanish  Government."  If  tlio  statements  in  the 
letter  of  the  Consnl  to  JMr.  Adams  on  tlie  -1st  of  Jnne  contained,  as 
the  Jiaw-OlMcers  of  the  Crown  said,  "  jironnds  of  reasonable  snspicion," 
this  letter  certainly  on};ht  to  have  pnt  the  oflieers  of  the  (Jovernment 
npon  in(iniry  as  to  the  trnth  of  the  statements  made;  but  the  arbitra- 
tors will  fail  to  discover  in  all  the  evidence  submitted  by  Her  ^Injesty's 
(lovernment  any  proof  tendinjj  to  show  any  attomi>t  at  that,  or  any 
other  time  before  the  departure  of  the  vessel,  by  any  ollicer  of  Her 
jMa.jesty's  Clovernment,  to  infjuire  as  to  the  truth  of  any  fact  stated  by 
the  Consul. 

The  only  statements  made  by  him  which  have  not  be<'n  fully  substan- 
tiated by  subse(|ueut  (h>velo]niU'nts  are  that  Captain  Jiullock  was  to 
command  the  vessel  and  that  the  Florida  was  then  armin;;'  at  Nassau. 
Iji  point  of  fact,  it  was  true,  however,  that  Ca])tain  lUillocic  had  been, 
originally,  assigned  to  the  command  of  the  Florida,  and  it  Avas  only 
about  the  l.")th  of  rlune  that  a  change  was  nuule.'  ^Vs  to  the  arming  of 
the  Florida  at  Nassau,  it  has  already  been  seen  why  that  had  not  then 
been  accoiuplisheil  as  it  afterward  was.  This  lastnanu'd  error  in  the 
statement  of  the  Consul  has,  however,  been  considered  of  sutlicient  im- 
portance by  Her  Majesty's  Ciovernmeut  to  be  made  the  sul>ject  of  spe- 
cial mention  on  page  85  of  its  Case. 

On  the  10th  of  July  the  collector  acknowledged  the  receipt  of  the 
letter  from  the  Consul,  but  accom[»anie(l  his  ackiu)wledg- 
ment  with  the  remark,  "  I  am  respectfully  of  the  opinion, 
the  statement  made  by  you  is  not  such  as  could  be  acted  upon  by  the  ofli- 
eers of  this  revenue,  nnless  legally  substantiated  by  evidence." '^  The 
collector,  howe\er,  on  the  same  day,  (the  lOth)  ordered  the  vessel  again 
to  be  "inspected''  by  the  the  surveyor,  who  immediately  re]»orted  that 
it  had  bee?;  done,  and  that  she  was  in  the  same  state  as  regards  her 
arumment  as  on  the  date  of  his  former  report.''  And  the  same  day  (the 
10th  also)  the  collector  transmitted  to  the  commissioners  of  customs  the 
letter  of  the  Consul  and  the  report  of  the  surveyor,  accompanying  them 
with  a  copy  of  his  letter  to  the  consul  and  the  statement  that  "if  slui 
is  for  the  confederate  service  the  builders  and  parties  interested  are  not 
likely  to  commit  themselves  by  any  act  which  would  subject  them  to 
the  penal  provision  of  the  foreign-enlistment  act."^ 

On  the  11th  of  July  the  solicitor  of  the  customs,  having  considered 
the  letter  of  the  consul,  reported : 

There  is  only  one  pi'opor  way  of  lookinj;'  at  this  fiuestion.  II'  the  collector  of  cus- 
toms Avcrc  to  tU'taiu  the  vessel  in  (lUestion,  he  would  no  doubt  have  to  luaiutain  the 
seizure  by  lej^al  evidence  in  a  court  of  law,  and  to  pay  damages  and  costs  iu  case  of 
failure.  I'lton  carefully  reading  the  statement,  1  liud  the  greater  part,  if  not  a'i,  is 
hearsay  and  inadmissible,  and  as  to  a  part  the  witnesses  are  not  forthcoming  or  e\eii 
to  be  named.  It  is  perfectly  clear  to  my  mind  that  there  is  nothing  iu  it  amounting  to 
2>rima  fach:  proof  snftieient  to  justify  a  seizure,  mnch  less  to  suppcu't  it  iu  a  court  of 
law,  .and  the  consul  could  not  expect  the  collectoi-  to  take  upon  himself  such  a  risk  iii 
opposition  to  rules  aud  priueiiiles  by  which  the  L lown  is  governed  iu  matters  of  this 
nature.  ^ 

Oil  the  loth  of  July,  four  days  after  the  opinion  of  the  solicitor  was 
given,  and  six  days  after  the  letter  of  the  Consul,  the  commissioners  of 
customs  advised  the  collector  that  "  there  does  not  anpear  to  be  prima- 
facie  proof  sufdcient  in  the  statement  of  the  Consnl  to  justify  the  seiz- 
ure of  the  vessel,  and  you  are  to  apprise  the  Consul  accordingly."  ^ 


'  Am.  App.,  vol.  vi,  \t.  488. 
^  Brit.  Case,  p.  85. 
3  Ibid.,  p.  80. 


*  Brit.  App.,  vol.  i,  p.  184. 
f-  Brit.  Case,  p.  80. 
'•  Ibid. 


.ilb*S' 


T!Ii:    AI.AIJAMA. 


87 


It  is  almost  iiierodiblo  that  it  iiovor  occurred  to  any  one  of  these  sev- 
eral olUeers  of  the  (loverniaent  that  there  was  anythiii;;'  in  the  letter  of 
the  C'oi^sul  eallinj;'  upon  them  for  inve.stijuation  of  the  facts  siibniitteil 
by  him.  And  this,  too,  when,  aecordiuiH'  to  the  opinion  of  the  distin- 
;;iiished  Law-Oflicers  of  the  Crown  j;i>enon  the  .'!(Hh  of  .lune,  "the 
;;roundsof  reasoiudde  suspieion"su<;';iested  in  the  letter  of  the  consul  of 
the  lilst  were  sufll(!ieut  to  make  it  proper  that  stejis  should  be  taken 
to  aseirtain  thr  tt'utho/  tht'stafoncntu  then  made,'  and  when  ISfr.  Adams, 
in  his  lir.st  communication  n[)on  this  subject,  had  asked  an  in(piiry  by 
the  ollicers  of  the  (lovernment  as  to  the  actual  <lestination  of  the  vessel. 

On  the  Kith  of  .Inly  the  collector  informed  the  consul  tliat  the  solicitor 
of  customs  ha<l  advised  the  commissioners  of  customs  that 

"the  details  yivcn  by  you  in  rey:ard  to  the  said  vessel  are     "'  ' "' '""" 

not  sullicient,  in  a  l(^;;al  point  of  view,  to  Justify  me  in  takinj;"  upon  my- 
self the  res[>onsibility  of  tlu;  detention  of  this  shii)."- 

On  the  same  day  (the  KJth)  a  co])y  of  the  letter  of  the  Consul  of  the 
0th  was  Nubmitted  to  Mr.  Collier,  afterward  attorney-<;eneral  and  iu)w 
one  of  the  inend)ers  of  the  Judiciary  eo'umittee  of  Jler  Alajesty's  Privy 
Council,  for  his  oiiinion,  and  he  prox  ■)>'^1y  re[>lied  :  "  1  think  the  evidence 
almost  conclusive.        *        *         *         *  <^i^  ^]^^,   mjiitc)'   is  repre- 

sented to  me  to  be  urfjent,  1  advise  tlnii  the  princii)al  ollicer  of  the  cus- 
toms at  Liverpool  be  immediately  ii[iplied  to,  under  '>U  (leo.  J II,  cai>.  (10, 
to  exercise  the  ])owers  conferred  »'»on  hiia  by  that  section  to  .seize  the 
vessel,  with  a  view  to  lier  condeninatio'i,  an  indemnity  being  f^iveu  to 
him,  if  he  recpiires  it.  It  would  be  ])r<>per  at  the  same  time  to  lay  a 
statement  of  the  fact  betbre  the  Secietary  of  State  for  Foreign  AlVairs, 
coni»led  with  a  request  that  Her  ]Miijesty"s  (lOvernment  would  direct 
the  vessel  to  be  seized,  or  ratify  her  seizure  if  it  has  been  made."'  On 
the  next  day  (the  17th)  the  commissioners  of  customs  advised  the  com- 
missioners of  the  Treasury  that  the  collector  at  Liverpool  had  been  in- 
Ibrined  by  them  "-that  they  do  not  consider  there  is, prim(( -facie  proof 
sutlicient  in  the  Consul's  statement  to  Justify  the  seizure  of  that  vessel, 
and  have  instructed  him  to  npi)rise  the  Consul  accordingly."' 

On  the  same  day  (the  17th)  Mr.  Adams  wrote  the  Consul  directing 
him  "  to  employ  a  solicitor  and  get  up  aftidavits  to  lay  be- 
fore the  collector."  That  letter  was  received  by  the  consul 
on  the  morning  of  the  IStli  and  he  immediately  retained 
Mr.  Squarey.'^  The  great  ditUculty  for  the  solicitor  and  the  Consul  with 
their  means  of  information  was-  "  to  get  direct  proof.  There  were  men 
enough  who  knew  about  her,  and  who  uiulerstood  her  character,  but 
they  were  not  willing  to  testify,  and  in  a  i)reliminary  proceeding  like 
this  it  was  impossible  to  obtain  process  to  compel  them.  Indeed,  no 
one  in  a  hostile  community  like  Liverpool,  wheie  the  feeling  and  senti- 
ment are  against  us,  would  be  a  willing  witness,  especially  if  he  resided 
there,  and  was  in  any  way  dependent  upon  the  peo[)le  of  that  place  for 
a  livelihood."" 

Uut  as  early  as  tbe  21st,  the  Consul  and  his  solicitor  appeared  before 
the  collector  and  presented  to  him  as  witnesses  William         ^     ^    , 
Tassmore,  John  De  Costa,  Allen  S.  Clare,  Fenrv  Wilding,  >JlinriZ\Ju7< 
and  Mathew  jNIaguire,  and  their  aftidavits,  with  that  of  the  >  r.  i"-t  tu  ».,/.. 
Consul,  were  then  taken  by  the  collector,  who  administered 


Mr.    A  .1 
coiitiniie 

pr ; 


I  in  H    Ml 
rtm-itil  to 
u    colli'.l 


i     1 


1=1 


.^'  ,    t  i 


(    ' 


I  i/*i 


'  Hrit.  Case,  p.  h;?. 

-  Brit.  Ann.,  vol.  i,  p.  '->47. 

^  Ibia. 


<  Iliid.,  p.  1H7. 
» Ibid.,  i».  t>44. 
"  Ibid.,  p.  '245. 


88 


ARGUMENT    OF    THE    UNITED    STATES. 


tire  necessary  oaths.  Upon  this  testimony,  under  oath,  tlje  collector 
was  requested  to  seize  tiic  vessel,  and  the  portions  of  the  Ibreign-enlist- 
uient  act  applicable  to  the  case  were  read  to  liim.' 

The  witnesses  were  all  ])resent  before  the  collector.  lie  Iftid  full 
opportunity,  if  he  desired,  to  examine  tliem  i)ersonally,  and  thus  test 
the  accuracy  of  their  statements  or  their  credibility.  Tliis  lie  does  not 
seem  to  havedv^ne,  or,  if  he  did,  he  has  not  put  on  record  any  suspicion 
as  to  the  reliability  of  the  tcstiinony.- 

On  the  same  day  (the  -1st)  the  collector  transmitted  the  aClidavits  to 
the  commissioiu'rs  of  customs,  statinji'  that  he  had  been  re(iuested  to 
seize  the  vessel,  and  asivcd  the  board  to  instruct  him  "  by  telegrapli  how 
I  am  to  act,  as  the  ship  appears  to  be  ready  for  sea,  aiul  may  leave  any 
liour  she  pleases.'" " 

The  affidavits  were  received  by  the  commissioners  of  customs  on  the 
,f  i.*i*d  of  rJuly,^  and  at  once  referred  to  the  solicitor  of  customs, 
who,  Avith  his  assistant,  immediately  advised  the  board  that 
the  evidence  submitted  was  not  sullicient  to  warrant  the  seizure  or  de- 
tention of  the  vessel.  The  assistant  solicitor  said  "  the  only  justifiable 
grounds  of  seizure  under  section  seven  of  the  nvt  would  be  tlie  produc- 
tion of  such  evidence  of  the  fact  as  would  supi)ort  an  indictment  for  the 
misdemeanor  under  that  section."^  On  the  same  day  (the  2lM)  the 
board  informed  the  collector  that,  as  they  were  advised  by  their  solic- 
itor, the  evidence  was  not  suflicient  to  justify  a  seizure,  and  he  should 
govern  himself  accordingly,  but  they  added :  "  The  solicitor  has,  how- 
ever, stated  that  if  there  should  be  sufficient  evidence  to  satisfy  a  court 
of  enlistment  of  individuals,  they  would  be  liable  to  pecuniary  penal- 
ties, for  the  securit}'  of  which,  if  recovered,  the  department  might 
detain  the  ship  until  these  penalties  are  satisfied  or  good  bail  given ; 
but  there  is  not  sufficient  evidence  to  require  the  customs  to  prosecute. 
It  is,  however,  comi)etent  for  the  United  States  Consul,  or  any  other 
l^erson,  to  do  so  at  their  own  risk  if  they  see  fit.'"" 

No  copy  of  the  opinion  of  the  solicitor  or  his  assistant  was  sent  to 
the  Consul  or  Mr.  Adams,  but  on  the  2.')d  of  July  the  collector  advised 
the  Consul  that  the  board,  upon  the  advice  of  their  solicitors,  had  con- 
cluded the  evidence  submitted  was  not  sufficient  to  justify  any  steps 
being  taken  against  the  vessel,  but  he  added:  "It  is,  however,  consid- 
ered to  be  competent  for  the  United  States  Consul  to  act  at  his  own  risk 
if  he  should  think  tit." ' 

This  last  clause  attracted  the  attention  of  the  Consul  at  once,  and  "Sir. 
Squarey  called  upon  the  collector  and  asked  its  meaning.  "  His  response 
was  that  this  was  copied  from  the  letter  addressed  to  him  by  the  board." 
Mr.  S(|uarey,  of  course,  advised  the  Consul  he  had  no  power  to  stop 
the  vessel ;  that  the  jwwer  to  detain  her  was  lodged  with  the  collector." 
The  collector  did  not  intimate  that  the  board  referred  in  their  instruc- 
tions to  the  ])rosecution  of  the  individuals  and  to  a  possibility  of 
detention  by  them  in  case  of  such  a  prosecution.  But  if  he  h.ad,  it  is 
not  easy  for  the  United  States  to  discover  why  they  should  be  called 
upon  to  ]uosecute  iiulividu.als  criminally  in  the  courts  of  Great  Britain 
for  a  violation  of  its  municipal  law.    It  was  not  the  punishment  of  in- 


'  Amoricaii  Appoiidix,  vol.  vi, 

-  iSritiNli  Ciih*',  p.  H7. 

'Ibid. 

^Britisli  Case,]!.  00, 


p.  31).^). 


'  British  Appendix,  vol.  i,  p.  18ri. 

Ml.id. 

'  British  Appendix,  vol.  i,  p.  248. 

"British  Appendix,  vol.  i,  p.  240. 


THE    ALABAMA. 


89 


1.1    till'   t 
July  «. 


:it.-.i 


(lividuals  they  soujilit.    They  asked  the  detention  of  the  vessel  and  by 
that  means  the  i)reveution  of  a  crime  against  the  law  of  nations. 

On  the  same  day  (the  22d)  the  aftidavits,  and  the  action  taken  upon 
them  liy  the  board  of  commissioners  of  customs,  were,  by 
the  board,  submitted  to  the  lords  commissioners  of  the 
Treasury,  with  the  sun;gestion  that,  if  they  had  any  doubt,  it 
might  be  advisable  to  take  the  opinion  of  the  law-ollicers  of  the  Crown,' 
and  at  once  the  Lords  Commissioners  of  the  Treasury  transmitted  to  the 
Foreign  Oflicc  copies  of  the  i)apers  reccivetl  from  the  commissioners  of 
customs,  with  a  statement  that  the  vessc^l  was  "  nearly  ready  for  sea."^ 

On  the  same  day  (the  2i'd)  Mr.  Adams  ti-ansmitted  to  Earl  Kussell 
copies  of  the  same  affidavits  "tending,"  as  he  said,  "to  vi..,, i„i:„ii(,m 
establish  the  character  and  destination  of  the  vessel."  '  '"' 
Ujwii  the  -od  the  i)ai)ers  from  the  commissioners  of  customs  were  se^nt 
from  the  Foreign  Ollice  to  the  Law-Ofiicers,  with  a  reipiest  for  considera- 
tion and  an  opinion  at  their  "earliest  convenience."  ^ 

On  the  liSil,  also,  the  Consul  and  his  solicitor,  having  heard  from  the 
assistant  solicitor  of  the  customs  that  the  ])revious  atUdavits 
were  not  considered  sullicient  and  that  the  collector  had 
been  directed  not  to  detain  the  vessel,  procured  further  allidavits  from 
Edward  Koberts  and  Uol>ert  John  Taylor.'    They  also  ]>rocured  a  fur- 
ther opinion  from  Mv.  Collier,  predicated  ui>on  the  eight    ,,„„ ,  „, 

allidavits  which  had  then  been  obtained,  in  which  he  used  ' ''' 
this  signiticant  language: 

1  have  poriiaod  tlio  iibovo  alHtlavits,  and  I  i'lu  of  opinion  that  tho  ODJlector  of  customs 
wouUl  bojn.stiliod  in  dctaininj;  the  vcssol.  Indeed,  1  siioiUd  think  it  hi.s  dnty  to  detain 
liev;  and  that  if,  after  the  ai>plieatioii  wliieh  has  )>een  made  to  him,  snpixirtod  by  tho 
evidenee  which  has  been  hii<l  l)eforo  me,  h(;  allows  the  vessel  to  leave  Liverpool,  he  will 
incur  a  heavy  responsibility,  a  resj)onHi))ility  of  which  tho  board  of  customs,  under 
whose  directions  heappears.to  be  acting,  must  take  their  share.  It  ai>pears  ditricult 
to  make  out  a  stronger  case  of  infringement  of  the  foreign-enlistment  act,  which,  if 
not  enforced  on  this  occasion,  is  little  Ixftter  than  a  dead-letter.  It  widl  d(>serves  con- 
sideration whether,  if  the  vessel  be  allowed  to  escape,  tlie  Federal  Government  would 
not  have  serious  grounds  of  remonstrance."  " 

The  additional  affidavits  were  on  the  same  day  presented  by  Mr. 
Squarey,  with  theopinion  of  Mr.  C'ollier,to  the  commissioners 
of  the  customs,  with  a  letter  in  which  he  said : 

I  learned  this  morning  fromMr.  O'Dowd  that  instructions  were  forwarded  yesterday 
to  tho  collector  at  Liverpool  not  to  o\orciso  t\u\  powers  of  tin;  act  in  this  instance,  it 
being  considered  that  the  facts  disclosed  in  the  afhdavits  made  before  him  were  not 
siirticient  to  Justify  the  collector  m  seizing  the  vessel.  Ou  behalf  of  tho  (Tovernmout 
of  the  United  States,  I  now  res])ectfully  r'3([uest  that  this  matter,  which  I  need  not 
])oint  out  to  you  involves  consequences  of  tho  gravest  possible  description,  may  bo 
considered  by  the  board  of  customs  on  the  further  evidence  now  adduceil.  The  gun- 
boat now  lies  in  the  Hirkenhead  Docks,  ready  for  sea  in  all  respects,  with  a  crow  of 
fd'ty  men  on  board;  she  may  sail  at  any  time,  and  I  trust  that  the  urgency  of  tho  case 
will  excuse  tl\o  course  I  have  adopted  of  sending  these  papers  direct  to  the  board, 
instead  of  tranamittingthom  through  the  collector  at  Liveri>ool,  and  thei'eiiuest  which 
I  now  venture  to  make,  that  the  matter  may  n^coive  immediate  attention.' 

The  Board  on  the  same  day  referred  all  the  papers  to  their  solicitor, 
whose  assistant  reported  that  he  could  not  concur  in  the 
.lews  of  Mr.  Collier,  but  " adverting  to  the  high  character 


Pr.M.Mit.vl  « 
ntVi.i[ivits  to  tit.; 
t'irtH,  July  2'.i. 


A. '11. 
b.i  ira. 


.>  I'     t  li  t 


'  Hritish  Case,  p.  01.  '  Ibid. 

•  Ibid.  t  lldd. 
•Dudley  to  Seward,  Hritish  Appendix,  vol.  i,  ji. '24.'. ;  Squarey  to  Gardner,  Ibid.,  p.  IIM. 
"Hritish  Appeiulix,  vol.  i,  p,  llXi;  Hritish  Case,  p.  '.»:?. 

•  Hritish  Appendix,  vol.  i,  p.  IIM. 


i:   > 


'  M 


%  'I  ii 


w^ 


90 


ARGUMENT   OF    TIIK    UNITED    STATES. 


which  he  bears  iu  his  profession,  I  submit  that  the  Board  might  act  ju- 
diciously in  recommeudiug  the  Lords  of  the  Treasury  to  take  the  opinion 
of  the  Law-Officers  of  the  Crown."  ^  On  the  same  day  (the  23d)  the  pa- 
pers were  sent  from  the  Foreign  Office  to  tlie  Law-Otticers,  with  a  request 
for  an  opinion  at  their  earliest  convenience.^  On  that  day  also  Mr. 
Sqnarey  called  at  the  Foreign  Otlico  and,  ascertaining  that  the  papers 
had  been  sent  to  the  Law-Offlcers,  but  that  an  opinion  had  not  up  to  that 
time  been  received,  obtained  from  the  Under  Secretary,  upon  his  "  repre- 
sentation of  the  extreme  urgency  of  the  ca.se,''  a  promise  that  the  opin- 
ion should  be  sent  for  at  once. ' 
On  the  24th  ^Er.  Adams  also  transmitted  to  Earl  Kussell  copies  of  the 
same  additional  affidavits  and  the  o|)inion  of  Mr.  Collier.  ' 
Mr.  Collier  was  also  retained  by  the  Consul  to  institute  pro- 


KurtlKT 
^iiliiiiiltud 
Allan)!* 


cviiit'iic*. 
t'.v      .Mr. 


ceedings  for  condemnation  in  case  the  seizure  was  made. 


On  the  25th  another  affidavit  was  presented  by  3Ir.  Sfiuarey  to  the 
eustcms  authorities,  from  whom  it  found  its  way  on  the  2«itb  through 
the  Foreign  Office  to  the  Law-Officers,  the  opinion  of  the  solicitor  of  the 
customs  being  still  adverse  to  the  detention.  °  On  the  20th  also,  Mr. 
Sqnaroy  again  called  the  attention  of  tlie  secretary  of  the  customs  to 
the  matter,  and  said  he  "  had  hoped  that,  ere  this,  the  decision  of  the 
Lords  Commissioners  of  Her  Majesty's  Treasury  might  have  been  made 
known  particularlj',  as  every  day  affords  opportunities  for  the  vessel  in 
question  to  take  her  departure.''  To  this  the  secretary  replied  that,  "  in 
the  absence  of  instruirtions  from  tlioir  lordships,  the  board  are  unable 
to  give  any  directions  in  regard  to  the  gun-boat  in  (piestion." " 

Thus,  on  the  2Gth,  ended  the  labors  performed  by  the  representatives  of 
the  United  States.  The  Consul,  in  making  his  report  to  the  secretary  of 
state  of  his  Government,  after  detailing  Avhat  had  been  done  by  him  and 
those  with  whom  he  had  been  associated,  said,  "  I  have  done  about  all 
that  I  can  do  to  stop  this  vessel ;  much  more,  I  think,  than  this  Oovern- 
raent  ought  to  require  any  friendly  government  to  do.  3[y  counsel  say 
1  can  do  no  more,"'*  The  United  States  confidently  believe  the  Arbi- 
trators will  concur  in  this  opinion  of  the  Consul. 

The  entire  proof  was  in  the  possession  of  the  Law-Ofticers  of  the  Crown 
on  the  2Gth.  Substantially  it  was  all  there  on  the  23!!.  The  affidavit  of 
Kedden,  presented  after  that  date,  simply  confirmed  the  already  existing 
proof.  That  it  Avas  sufficient  is  shown  by  the  opinion  of  the  Law-Officers 
of  the  Crown,  given  as  soon  as  it  was  examined.  Even  the  first  letter 
of  the  Consul,  written  on  the  2Lst  of  June,  and  considered  by  the  Law- 
Officers  on  the  30th,  was  sufficient  to  show  that  "  grounds  of  reasonable 
suspicion  "existed  at  that  time  and  called  for  an  inquiry  into  the  truth. 
After  that  followed  the  letter  of  the  Oth  of  July,  with  its  more  particu- 
lar statement  of  details;  then  the  affidavits  of  the  2lst;  then  the  affi- 
davits of  the  23d,  and  the  pointed  opinion  of  the  most  eminent  counsel ; 
then  the  affidavit  of  the  24th  ;  and  at  all  times  cautions  by  the  officers 
of  the  United  States  against  delay  and  representarions  of  the  extreme 
urgency  of  the  case.  The  vessel  was  in  the  dock.  From  the  commence- 
ment, the  builders  Avere  not  disposed  to  reply  to  any  (luestion  with  refer- 
ence to  her  destination  after  she  left  Liverpool.    As  early  as  the  24st  of 


'  Urit.  Case,  p.  94. 

■'  Ibid. 

'  Hiit.  Api».,  V(.l.  i,  p.  2A>*. 

'  Brit.  App.,  vol.  i,  p.  !i4(). 


■■nrit.  Case,  p.  94, 
"  Hrit.  Ciiso,  9.'). 
'  Am.  Api).,  vol.  VI, 


p.  40") 


lUit.  Apjt.,  vol.  i,  p.  24(1. 


THE   ALABAMA. 


91 


♦  y  -5  pov- 


('rniiu-nt      iiur*'*-      (i 
kt-'P  :i  watrli  till  III' 


July  it  was  Inown  to  the  collector  she  had  her  coal  on  board,  and  might 
leave  any  hour  she  pleased. ^ 

Ou  the  li3d  the  commissioners  of  customs  were  advised  "  that  she 
was  ready  for  sea  iu  all  respects,  with  a  crew  of  fifty  men  on  board  ; 
she  may  sail  at  any  time."'^  Ou  the  28th  she  was  moved  from  the  dock 
into  the  river  ;  the  men  had  taken  their  clothes  and  beds  on  board,  and 
received  orders  to  hold  themselves  iu  readiness  at  siny  moment.  She 
had  no  register  or  clearance,  but  the  collector  said  that  was  not  neces- 
sary and  that  she  could  go  anywhere  without."  She  remained  at  anchor 
in  the  river  until  11  or  12  o'clock  of  the  21)tli  and  "  was  seen  from  the 
shore  by  thousands  of  persons.''^  The  customs  otiicers  were  onboard 
when  she  started,  and  only  left  her  when  the  tug  left.^ 

During  all  this  time  Iler  Majesty's  Government  was  under  its  promise 
to  Mr.  Adams,  made  as  early  as  the  Ith  of  July,  that  "  the 
officers  at  Liverpool  will  keep  a  strict  watch  on  the  vessel, 
and  that  an;y  further  information  that  may  be  obtained  con- 
cerning her  will  be  forthwith  reported."" 

After  the  vessel  had  sailed,  but  not  before,  the  Law-Oflicers  announced 
their  opinion  that,  upon  the  evidence  furnished  by  the 
United  States,  she  should  be  detained.'  At  what  hour  iu  ti..nk%iJ'TeVsTi 
the  day  this  opinion  was  actually  given  does  not  appear,  but 
it  was  agreed  upon  on  the  evening  of  the  28th,  the  same  day  that  the 
l)aiH'rs  were  considertd.  ^  It  was  said  by  Earl  llussell  to  Mr.  Adams  at 
a  conference  on  the  31st  of  July  that  a  "  delay  iu  determining  upou  it 
[the  decision]  had  most  unexpectedly  been  caused  by  the  in„,„,f  s.r.i.i... 
sadden  development  oi'  a  malady  of  the  (i^ueeu's  advocate,  ""'"* 
Sir  John  D.  Harding,  totally  incapacitating  him  for  the  trausa^  tion  of 
business.  This  had  made  it  necessary  to  call  in  other  parties,  whose 
opinion  had  been  at  last  given  iw  the  detention  of  the  gunboat."^  And 
in  the  British  Case  it  is  said :  ''  One  of  Her  Majesty's  ordinary  legal 
advisers,  the  Queen's  Advocate,  now  deceased,  was  at  that  time  seriously 
ill  of  a  malady  from  which  he  never  recovered,  and  this  was  mentioned 
at  the  time  (on  the  31st  July,  18(t2)  by  Lord  IJussell  to  Mr.  Adams,  as  a 
circumstance  which  had  occasioned  some  delay.'"" 

The  United  States  find  among  the  documents  and  evidence  furnished 
by  Her  Majesty's  Governmoutfor  the  information  of  the  Arbitrators  eight 
opinions,  given  by  the  Lav^-Officers  of  the  Crow  n  ju'evious  to  the  29th  of 
July.  Of  these,  all  before  that  which  was  given  on  the  30th  June,  upon 
the  representation  of  Mr.  Adams  under  date  of  the  23d,  were  signed  by 
Sir  Johu  ]).  Harding,  the  (Queen's  advocate.  Sir  William  Atherton,  the 
Attorney-General,  and  Sir  Koundell  I'almer,  the  Solicitor-Cireneral,  or  by 
the  Attorney-General  alone.  That  of  the  30th  of  June  was  signed  by  the 
Attorney-General  and  the  Solicitor-General.  From  this  circumstance  the 
United  States  infer  that  the  Queen's  Advocate  was  unable  to  attend  to 
his  duties  as  early  as  that  date,  (the  30th  June,)  and  that  then  the 
opinion  of  the  other  distinguished  gentlemen  who  were  the  legal  advisers 
of  Her  Majesty  was  considered  sulticient ;  find  they  also  infer  that  it 


'  Edwiirds  to  Coinnira.  of  Cnstotns,  Urit.  App.,  vol.  i,  ]i.  188 

-  Sipiarey  to  Gaicluer,  Hiit.  Api).,  vol.  i,  p.  l'J4. 
:iT>M.1l...,  4^.v  A,i..,..o     A...     *,...     ....1     ,.::    ..   -<! 


Diitlley  to  Adams,  Am.  Ajip.,  vol.  vii,  ]».  7(3. 
^  Mr.  Laird  in  the  House  of  CommoiiH,  Am.  App.,  vol.  v,  ]).  GDI. 
■'  Ibid.,  Am.  App.,  vol.  iv,  p.  5'.i6 ;  Ham^ard,  vol.  elxx,  p.  UU. 
"  lirit.  Casp,  ]>.  H4.  ■  ll>id.,  p.  <).-). 

"Sir  RtuiiKhU  ralmrr  in  tlio  Honso  of  Connnons,  Aug.  4,  1H71,  Am.  Case,  p.  'M'-l. 
"Adams  to  .Seward,  lirit.  Apjt.,  v(d.  i,  •24'.».  '"Page  118. 


'  Van?  i 


\¥  '■ 


\     '  ... 


'1- 


\  v._:- 


"W^ 


92 


ARGUMENT   OF    THE    UNITED    STATES. 


I 
I 


was  not  necessary  on  the  23(1  of  .Inly  to  call  in  new  parties,  but  only  to 
call  npon  the  old.  The  opinions  i>revious  to  June  30tli  will  be  found  in 
British  Appendix,  vjI.  ii,  pages  2,  10,  32,  98,  100,  138 ;  that  of  the  30th 
June,  in  vol.  i,  page  181. 

On  the  2Sth  of  July  the  solicitor  of  the  Consul  wrote  the  secretary  of 
the  commissioners  of  customs  that  he  had  every  reason  to  believe  the 
vessel  would  sail  on  the  2t)th  ;  and  on  the  morning'  of  the  20th  tele- 
l^raphcd  him  she  had  gone.  The  letter  reached  the  secretary  before  the 
telegram.* 

AVhen  this  information  was  recoivetl,  therefore,  by  the  commissioners 
K.iM"  1  th-Aia-  of  customs,  tiie  vessel  could  not  have  been  far  from  Li ver- 
'"""  pool,  perhaps  not  yet  out  of  sight  of  some  of  "  the  thousands 

of  persona"  who  ''from  the  shore"  had  seen  her  '•  anchored  in  the  river." 
Yet  no  order  was  given  for  her  pursuit.  In  another  case  it  might,  but 
in  the  present  the  United  (States  are  inclined  to  think  it  u'ill  not,  surprise 
the  Arbitrators  to  learn  that  the  opinion  of  the  Law-Officers  of  the  Crown 
advising  the  detention  of  the  vessel,  delivered  at  the  Foreign  Office  on 
the  20th,  was  not  made  known  to  the  commissioners  of  customs  "  until 
4  p.  m.  on  the  31st  of  July,  or  two  days  after  the  Alabama  had  left  the 
Mersey,  .and  twelve  hours  after  she  had  ftnally  sailed  from  Moelfra 
lloads."  ■' 

She  was  accompanied  as  she  left  Liverpool  by  the  tug  Hercules,  which 
"kept  in  sight  other  until  she  lay  to,  about  a  mile  off  the  Bell  Buoy, 
and  about  fourteen  miles  froui  the  Canning  Dock."  The  tug  returned 
to  Liverpool  about  7  p.  m.  of  the  20th,  bringing  back  from  the  "  new 
gun-boat "  "  some  of  Mr.  Laird's  workmen  aiul  riggers."  ' 

On  the  morning  of  the  30th,  the  Consul  called  in  person  upon  the  col- 
lector and  informed  him  that  the  tug  was  then  in  port,  hav- 
,ah"e4ueui'[.ro,.'!r  lug  rctumcd  froHi  the  Alabama  the  evening  previous;  that 
"""  she  reported  the  .Mabama  cruising  off  Port  Lynas,  and  that 

she  (the  tug)  was  then  taking  on  board  men  and  equipments  to  "  convey 
down  to  the  gun-boat."  ^ 

The  collector  sent  the  surveyor  to  the  tug  and  he  reported  that  he 
found  a  considerable  number  of  persons  ou  deck,  "  some  of  whom  admit- 
ted to  me  that  they  were  a  i)ortion  of  the  crew  and  were  going  to  join 
the  gun-boat."  He  also  informed  the  cr  Mector  that  it  was  said  she  had 
cruised  oft'  Port  Lynas  the  night  before.  '•' 

After  this  the  Hercules  left  Liverpool  and  went  to  the  Alabama,  find- 
ing her  at  Beaumaris  Bay  about  3  o'clock  in  the  afternoon  of  the  30th, 
She  remained  with  her  until  about  n)iduight  and  then  returned  to  Liver- 
pool."*^ 

The  tug  was  not  followed.  Her  movements  were  not  watched.  No 
telegrams  were  sent  to  the  customs  officers  or  any  other  representative 
of  Her  Majesty's  Government  at  Port  Lynas,  Beaumaris,  or  any  other 
station  or  district  in  the  vicinity  of  where  the  Alabama  was  known  to 
have  been.  She  arriv^ed  near  Port  Lynas,  at  INIoelfra  Hoads,  at  7.38  in 
the  evening  of  the  20th,  and  remained  there  at  anchor  until  3  o'clock  in 
the  morning  of  the  31st.' 

This  was  ascertained  by  the  collector  at  Beaumaris,  and  reported  by 
him  to  the  secretary  of  the  customs  on  the  2d  of  August,  in  reply  to  a 
telegram  addressed  to  him  on  the  1st.    Had  such  telegram  b?ieu  sent 


'  Brit.  Cas.',  p.  9(), 

-'  Report  Conmirs.  Customs.  lUit.  App.,  vol.  i,  p.  'iStl 

'Hrit.  C!is<',p.l»7. 

^Brit.  Case,  p.  IK!;  Am.  App.,  vol.  vi,  p.  407. 


'  Hrit.  Case,  p.  97. 

5  11,^' 


■  Ibid.,  p.  98. 


THE    ALABAMA. 


93 


on  the  30th,  when  the  Consul  informed  the  collector  at  Liverpool  of  what 
had  been  learned  from  the  tng,  the  vessel  might  have  been  stopped.  At 
least  she  conld  not  have  communicated  with  the  tug.  This  is  apparent 
from  what  was  done  by  the  collector  at  Beaumaris  on  the  1st,  when  he 
did  receive  his  instructions.^ 

Nothing  was  done  until  the  31st  of  «Tul,v,  when  there  was  siij-gested 
to  the  Duke  of  Newcastle  the  propriety  of  sending  the  (Jovcjior  of  the 
Bahamas  a  copy  of  the  report  of  the  Law-Ottlcers  of  the  Crown  of  the 
L'Oth;^  and  at  7.30  p.  m.  a  telegram  was  sent  to  the  customs  officers  at 
Cork  to  seize  her  if  she  arrived  at  that  port. ' 

On  the  1st  of  August  similar  orders  were  sent  to  the  officers  at  Beau- 
maris and  Holyhead,  the  instructions  to  send  them  not  having  bwn 
given  the  evening  before  until  after  the  telegraph  otlices  to  those  places 
had  been  closed. 

The  first  telegram  to  Cork  was  sent  more  than  tliirty  hours  after  the 
collector  had  been  advisedby  the  surveyor  of  the  })t)rt,  who  had  obtained 
his  information  from  the  nuister  of  the  tug,  that  the  Alabama  had  been 
the  night  before  cruising  ott  Port  Lynas,  and  that  the  tug  was  al)oiii  to 
start  from  Liverpool  to  meet  her.  The  excuse  for  sending  to  Cork  was 
that  Mr.  Sqnarey  on  the  L'Utli  had  advised  the  collector  he  had  reason 
to  believe  she  had  gone  to  (jjueenstown  f  but  mention  is  omitteil  of  the 
fact  that  afterward  advi(;e  had  been  received  that,  uj)  to  the  time  of 
the  departure  of  the  Hercules,  on  the  ."»Oth,  she  was  at  sonu^  point  nearer 
to  Liverpool,  at  which  she  was  to  re«!eive  her  crew  and  supplies  from  the 
tug. 

In  view  of  these  facts,  the  United  States  believe  the  Arbitrators  will 
have  no  difficulty  in  agreeing  with  Earl  Itussell  in  his  k,- u ,.-.!, i.nk^ 
opinion,  as  subsequently  exi>ressed  to  Mr.  Adams,  and  re-  ""^ '- ""''i- 
ported  by  himself  to  Lord  Lyons  on  the  27tli  of  March,  1803,  that  ''the 
cases  of  the  Alabama  and  the  ( )reto  were  a  scandal,  and  in  some  degree 
a  rei)roach  to  our  laws."''  This  ojunion  he  repeated  on  the  KJth  of  Felv 
ruary,  1804,  in  the  House  of  Conunons,  when  he  said: 

I  any  that  hore  as  I  said  it  in  that  dispatch  ;  I  .say  that,  haviiif?  pussiul  siuli  a  hiw  in 
the  yi'.ar  1819,  it  is  ii  scandal  and  a  rcproacli  that  one  ofth(!  belligerents  in  this  Ameri- 
can contest  has  been  enabled,  at  tlie  order  of  the  confedc'rate  <jovernnient,  to  lit  ont  a 
vessel  at  Liverpool  iu  such  a  way  tiiat  she  was  capable  of  l»ein<>'  made  a  vessel  of  war : 
that,  after  f^oin^;  to  another  port  in  Her  Majesty's  (hnninions  to  siiip  a  portion  of  her 
crew,  slio  proceeded  to  a  jiorr  in  neutral  teiritory,  anil  thert;  completed  her  crew  and 
t;i|uiinneut  as  a  vessel  of  war,  so  that  sins  has  sinc(!  been  al)le  to  eaptnre  and  destroy 
innocent  merchant-vessels  belont;in<^  to  the  t)tiu'r  belli<ieient.  Having  been  thus 
e(]ui|>ped  by  an  evasion  of  the  law,  1  say  it  is  a  scandal  to  onr  law  that  we  should  not 
be  able  to  itrovent  such  belligerent  operations." 

The  Arbitrators  will  also  rea«lily  find  that  the  scandal  was  not  the  fault 
of  the  laic,  but  of  its  cvccniion. 

As  was  truly  said  by  Mr.  Cobden  in  the  House  of  (Jommons,  on  another 
occasion,  July  23,  1803,  in  reference  to  the  iron-clads:  m,  <,.i.,!.  ,.>,.*. ^ 

I  do  not  think  it  is  very  ditlicult  to  find  out  i'or  what  governnn'nt  any  vessel  which 
is  being  built  in  this  country  is  intended,  if  it  be  intended  tor  a  goverununit  which  can 
legitimately  come  to  tins  country  to  buy  a' vessel." 

And  the  same  distinguished  statesnsan,  on  the  same  occasion,  said,  and 
saiil  truly: 
I  perceive  a  fallacy  which  runs  through  Lord  lius.sell's  dispatches  and  the  solicitm- 

'  ihit.  Case,  p.  !»8.  •'  Ibid.,  p.  m".. 

'  Brit.  App.,  vol.  i,  p.  202.  *  Hrit.  App.,  vol.  i,  ]>.  '20:?. 

'Am,  App.,  V(d.  i,  p.  .')8.'');    Hrit.  Bine  Book,  (North  Anu'rica,)  No.  ],  18(14,  p.  2. 
Ami.  App.,  vol.  v,  p.  .'itiS;  Hansard's  J'arliamentary  Debates,  vol.  dxxiii,  pp.  (JIM,  (YM. 
'  \n\.  Ai>p.,  vol.  v,  p.  (IIHI. 


<rr^ 


'  M 


,    1 

^^•n 


'  i 


% 


:    H 


I 


1  i 


If 


94 


ARGUMENT    OF    THE    UNITED    STATES. 


gonoral's  speodios.  They  constantly  confonnd  two  -"'('ry  dithu'cnt  tliin^^s.  namely,  '•he 
cvidi'nco  nfcossury  to  detain  a  vchscI  and  tlio  ovidoncc  necessary  to  coiiviet  a  ve.s^'il. 
The  oonsiniuonee  is  that  wo  refuse  to  interfere  nntil  Mr.  Adams  has  brouj^ht  forwa  d 
conclusive  evidenee  on  oath  tiiat  is  suflieieiit  to  convict.  *  '  *  The  dej)artnre  of  that 
privateer  [the  Alabama]  mi;j;ht  have  been  jirevented.  That  A-essel,  accordinf"'  to  Lord 
Rnssell's  dispatch,  left  the  j)ort  of  Liverpool  without  a  clearance,  clandestinely  »  *  » 
but  the  sovernment  mij^ht  have  i)revented  that.  They  had  {rrounds  for  suspicion  and 
nu;;ht  have  said  to  the  collector  for  the  i)ort:  "Before  this  vessel  hnives  or  has  lier 
clearance  we  must  hi;  satislied  on  thes(;  points;"  and  t.)  jvrevent  her  leavinjj  without  a 
clearance,  they  niij^ht  have  put  cnstoni-lioiise  olUcers  on  boanl.  I  maintain  that  you 
have  power  to  do  that  under  your  customs  consolidation  act.' 

That  iict  provide.s  (section  13)  "  that  the  coinmissioiier.s  of  customs,  or 
.  II  the  collector  or  comptroller  of  auy  ])ort  under  their  direc- 
Bcme!" in  \>"i"it" ,'t  tioiis,  ma,^' statlou  officers  on  board  any  ship  while  within 
the  limits  of  any  port  in  the  United  Kingdom  ;"  and  (section 
14.j)  tliat  "  before  any  ship  shall  depart  in  ballast  from  the  United  King- 
dom for  parts  beyond  the  seas,  not  having  any  goods  on  board  except 
stores  from  the  warehouse  borne  upon  the  victualling  bill  of  such  ship, 
nor  any  goods  reported  inward  for  exportation  in  such  shi]),  the  col- 
lector or  comptroller  slmll  clear  such  ship  in  ballast,  by  notifying  such 
clearance  and  the  date  thereof  on  the  victualling  bill,  and  deliver  the 
same  to  the  master  of  .such  ship  as  the  clearance  thereof,  and  the  master 
of  such  ship  shall  answer  to  the  collector  or  comptroller  such  questions 
touching  her  departure  and  destination  as  shall  be  demanded  of  him." 
And  again,  (section  140,)  '*Any  otlicers  of  customs  may  go  on  board  any 
ship  after  clearance  outward  within  the  limits  of  any  port  in  the  United 
Kingdom,  or  within  tour  leagues  of  the  coast  thereof,  and  may  demand 
the  ship's  clearance."'-  It  is  true,  there  is  no  provision  for  a  forfeiture 
of  the  shi}»,  and  perhaps  at  that  time  there  was  no  penalty  imposed 
upon  a  master  for  a  failure  to  comply  with  these  provisions,  but  when 
ller  Majesty's  Government  enacts  that "  before  any  sliip  .shall  depart"  from 
the  United  Kingdom  certain  things  .shall  have  been  done,  there  will  be 
found  somewhere,  the  United  States  believe,  some  power  by  which  she 
can  lie  detained  until  such  things  are  done. 

Sub.sefpu^ntly,  in  the  ca.se  of  the  Laird  iron-clads.  the  law  as  it  stood 
when  the  Alal)ama  escaped,  was  used  and  made  ell'ectual.  Whon  the 
(^o^  ernment  was  afterward  called  upon  in  the  House  of  Commons  to  an- 
swer for  <  .10  seizure  of  those  vessels,  and  in<]uired  of  as  to  the  authority 
by  which  it  was  made,  an  elaborate  and  conclusive  rejdy  was  given  by 
the  Attorney-deneralin  aspeech  from  which  extracts  have  already  been 
presented  for  the  consideration  of  the  Arbitrators.' 

IS'ow,  what  was  done  in  the  case  of  the  iron-clads  .'  Earl  Ifussell  re- 
quested the  secretary  of  the  treasury  to  "  move  the  Lords  Commission- 
ers of  the  Treasury  to  desire  that  tho.se  vessels  may  be  prevented  from  leav- 
ingtheportof  Liverpool until.satisfactory  evidence  can  be  given  a.sto  their 
destination;  or,  at  all  events,  until  the  inquiri'»s  which  are  now  being 
pro.secuted  with  a  view  to  obtain  such  evidence  shall  have  been  brought 
to  a  conclusion/'  * 

In  consequence  of  this  rcipiest,  one  of  Her  ^Majesty's  ships  of  war  was 

'Am.  App.,  vol.  v.,  p.  tilKJ. 

-Am.  App.  Counter  Case,  IloS,  1105,  ll(i(i. 

•'Ante,  pp.  78,88. 

^  Brit.  App.,  v(d.  ii,  p.  '^')2.  On  the2l)th  October,  181)1?,  thelaw-ot1icer.sof  the  Crowu, 
ou  beinj;  incpiired  of  as  "  to  the  course  which,  under  the  circumstances,  *  *  should  be 
adopted"  by  Her  M.njesty'.strovernment  in  respect  to  these  irou-clads,  reidied,  "  We  arc 
of  opinion  that  it  is  compet'nit  to  them  to  direct  those  vessels  to  bo  detained  in  any 
place  which  the  commissioners  of  Her  Mn.jesty's  customs  may  think  tit  to  order  under 
section  ;i"2;{  of  l(i  and  17  Vict.,  cap.  107,  (tiie  customs  law  consolidation  act,)  which  is 
incori)orated  by  reference  into  the  foreijfii-enlistment  act,  .VJ  (ieo.  Ill,  cap.  Gi>,  sec.  7." 
Brit.  App.,  vol.  ii,  p.  4U>. 


THK    ALABAMA. 


95 


|1  re 

pion- 

ieav- 

Iheir 

-ins 


low  11. 

Idl.e 
|e  iU'c 
any 
lii(l<'r 
ich  is 
li'..  7. 


])liice(l  on  the  watch,  ami  the  vessels  did  not  h'ave  i>ort.  Had  the  law 
been  executed  in  the  same  manner  with  respect  to  the  Alabama,  the 
]tresent  Tril)uiial  would  never  have  been  called  upon  to  consider  the  sub- 
ject now  under  discussion.  When  the  builders  appeared  not  disposed 
to  reply  to  any  question  with  reference  to  her  destination  after  leaving 
l)ort,  tijere  were  reasonable  grounds  for  supposing  that  the  destination 
was  an  illegal  one,  and  the  Lords  Commissioners  of  the  Treasury  could 
and  should  have  been  moved  to  prevent  her  leaving  until  satisfactory 
evidence  was  given  that  it  was  lawful. 

3Iuch  stress  is  laid  in  the  Case  presented  by  Her  INIaJesty's  (Jovern- 
ment  upon  the  fact,  that  while  the  attention  of  Mr.  Adams  and  the  Con- 
sul had  long  been  given  to  the  vessel  and  she  was  launched  as  early  as 
the  15th  of  May,  no  rei)resentation  had  been  made  to  Earl  Kussell  in 
respect  to  her  until  the  23d  of  June,  and  this  is  considered  of  sufliciei  '; 
importance  to  be  made  the  subject  of  a  second  reference  in  the  Counter 
Case. 

The  23d  of  June,  the  Arbitrators  will  notice,  Avas  more  than  one  month 
before  she  sailed;  sutticient  time  certainly  to  have  enabled  the  Govern- 
ment to  detain  her,  if  it  had  been  so  inclined,  upon  information  after 
that  time  obtained.  lUit  it  will  also  be  remembered  that  the  vessel  had 
not  escaped  the  notice  of  the  customs  officers,'  and  they  took  no  action, 
although  it  was  but  a  few  weeks  before  that  the  Oreto  had  been  per- 
mitted to  escape,  and  was  then  known  to  have  arrived  at  Nassau,  a  port 
entirely  inconsistent  with  an  innocent  destination.  In  fact,  on  the 
morning  of  the  28th  of  July,  the  day  before  the  Alabama  sailed,  and 
before  she  was  moved  out  of  the  dock  into  the  river,  the  Journal  of 
Commerce,  one  of  the  i>nblic  prints  at  Liverpool,  containe*!  an  account 
of  the  in'oceedings  which  were  being  carrieil  on  against  the  Oreto  at 
Xiissau.- 

It  was  not  time  for  action  which  the  oflicers  of  the  Government  re- 
quired, but  invliixdion. 

Again,  it  is  said  she  was  not  overtaken  by  the  Tuscarora,  which  had 
bi'eu  brought  to  Southampton  by  Mr.  Adams  for  the  very  purpose  of 
intercepting  her:  nor  by  any  other  of  the  vessels  of  war  of  the  Cnited 
K^tates  until  linally  destroyed  by  the  Ivearsarge.  No  better  answer  to 
this  eau  be  given  than  in  the  words  of  fSir  Thomas  Baring  in  the  House 
ot  Commons,  on  the  13th  of  ^lay,  18<)4,  when  he  said,  that  "even  with 
onv  ciiiiscrs  aHoat  it  would  not  be  easy  to  pick  up  an  Alabama  ;"  '  or  in 
those  of  ]Mr.  Cobden,  in  the  same  debate: 

rriliiips  iHitliiiij;  i>  iiioie  dit'licult,  not  to  say  inqxtssiblc,  tlian  to  tind  a  sliip  on  the 
<!'  iMti  alter  she  has  once  not  out  of  sij^lit.  Xelsoii  hi.iiselt' jiassed  many  months  tryinj^ 
In  ilnd  a  tieet  of  live  hundred  sail  yoiiiy;  from  rrance  to  ICiiypt.  Von  may  lintl  a  vessel 
111  a  liarl)or  Just  as  Xelson  found  the  rreiieh  lleet  at  the  Nile;  hnt  even  if  you  shouhl 
liiid  an  Ameriean  eiuiser  in  a  harhor.  by  yonr  own  iiilfs  you  must  allow  her  to  escai>e, 
hcciiisc  you  say  she  must  have  a  start  of  twenty-four  hours,'' 

The  latter  gentleman  on  another  occasion,  Jidy  23d,  18G3,  also  said  : 

-Now,  when  still  the  great  hulk  of  our  coinineree  is  carried  on  hy  sailinjj;-vessels,  two 
or  tlirue  steamers,  built  especially  for  speed,  may  harass,  and,  in  fact,  may  render  val- 
iit'li'.ss,  the  niereantile  marine  of  a  whole  nation.  I  have  heard  it  said,  "O,  ifit  were 
our  ease,  we  should  .soon  catch  those  vessels."  *  '*  I  have  four  times  crossed  the 
Atlantic,  and  saile<l  for  two  thousand  nules  without  speinjj  a  stranj^e  sail.  The  ocean 
is  a  very  wide  place.  You  cannot  follow  a  vessel  when  it  lias  once  j^ot  out  to  sea  with 
any  elmuce  of  catchinj!;  it.  You  have  no  stations  w  hero  you  can  hear  of  it,  and  no  road 
which  you  can  follow  with  th<^  chance  of  catcliiuu;  it.  ' 

'  Brit.  Case,  p.  8:5. 

*  Am.  App.,  vol.  vii,  p,  7(5. 

'Am.  App.,  vol.  V,  p.  579. 


■•  ibid.,  p.  rm. 

^  Am.  App.,  vol.  V,  p.  fi'.lO. 


VfT 


'ir 


*  '1 

» 

> 

**     . 

Y'' 

/ 

;S^ 

Hi 

i 

m 

Hi 


w 

'    ! 

III 

i 

1       ■ 

!f|y.l 

i    i 

u  • 


96 


ARGUMENT    OF    THE    UNITED    STATES. 


Especially  does  this  difticulty  exist  if  the  laws  and  refjulations  of 
neutrality  are  not  strictly  enforced.  In  January,  18G.'{,  Commodore 
Wilkes,  of  the  United  States  Navy,  wrote  to  the  Secretary  of  the  Navy 
of  his  Government : 

Tho  fact  of  tho  Flinida  liavinj;  Imt,  a  fow  days'  coal,  makos  me  anxious  to  Iiavo  om 
vcsHtils  otV  t!io  Maitiiii(|tu',  wliicli  is  tho  only  island  they  can  bo|M>  to  j?i!t  any  ooal  or 
supplies  at,  tho  En;;lish  islands  boinj;  cut  of!"  Miuler  the  rules  of  Her  Majesty  for  sonw 
sixty  days  yet,  wliich  precludes  the  possibility,  unless  by  some  (jhicanery  or  fraud,  the 
Lopo  of  their  j^ettinj^  coal  and  comfoit  there;  thoreforo  the  island  of  Mariini(]uc  it 
seems  to  me  to  bo  the  only  one  to  which  they  will  attemi»t  to  n^sort.' 

The  Florida  did  jnet  coal  at  Barbados,  an  Eii<»lish  island,  and  the  plans 
of  Commodore  Wilkes  failed. 

The  Alabama  havin;;-  escaped,  the  IJritish  steamshii)  IJahaina  cleared 
Ar,„am,„i  ir,  ,n  ou  tlic  loth  of  Auj^usl.  froHi  Livcrpool  for  Nassau  with  her 
thi  BHiu„t„,.  armament,  shii)ped  by  Fawcett,  Preston  ».V'  Co.^    The  Baha- 

ma also  had  on  board  Captain  Itaphael  Seuunes,  who  afterward  (;om- 
manded  the  .Vlabama,  and  some  otlicers  and  seanuMi,  a-  passenjLfers.' 
The  English  bark  Agrippina  also  cleared  from  London  in  August  for 
Demerara  with  a  cargo  ol'coal  and  munitions  of  war.' 

At  Angra  Hay,  in  the  Azores,  which  "  had  l.u^en  used  and  abused  by 
corsairs  and  jurates  during  centuries,''"'  on  the  2lid  and  2.»d  of  August, 
this  ariiuiment,  coal,  ammunition,  and  stores,  and  these  oHicers  aiul  sea- 
men, were  transferred,  under  tiie  IJritish  Hag,  from  these  vessels  to  tlie 
Alabama.  Ou  the  -ith,  Cai>tain  Setrunes,  with  his  otlicers,  took  jxjsses- 
sion  of  the  Alabama  and  nuistered  the  crew,  eighty-four  in  number  and 
mostly  Jlritisli  subjects.''  The  English  eiisign  was  hauled  down  and  the 
flag  of  the  insurgents  hoisted."  Thus  armed,  maimed,  ande<]uipped,  the 
Alabanui  sailed  from  the  Azores  as  a  cruiser  of  the  insurgents. 

Ou  the  18th  of  November  she  arrived  at  ^lartiuique,  and  anchored  in 
the  harbor  of  Fort  de  France."  She  went  there  to  coal,  ar- 
rangements having  been  made  to  nieet  the  bark  Agrippina, 
(the  same  that  had  taken  partofheroiittit  to  Augra,)  whi(;h  huil  arrived 
about  one  week  previous  with  a  (;argo  ofco.il  from  an  English  port.''  On 
the  oth  of  September  yiv.  Adams  had  forwarded  to  Karl  Kussell  a  let- 
ter from  the  consul  at  Liverpool,  stating  that  tlu'  Agri[)piua  was  to 
carry  out  another  cargo  of  coal  to  tUe  Alabama.  Oa  the  U">th  the  com- 
missioners of  customs  informed  tiie  lords  commissioners  of  the  treasury 
that  they  had  no  power  to  interfere.'" 

The  Agrippina  left  port  upon  tho  order  of  Captain  Semnuis  to  get 
uiuler  way  forthwith  and  proceed  to  a  new  place  of  rendezvous,  as  "it 
would  not  do  for  him  to  think  of  coaling  in  Martinique  under  the  cir- 
cumstances.'" "  Martini(|ue  was  uu<ler  the  JurisiUctiou  (t/  tlu-i  French 
Government  and  not  under  that  of  Her  Majesty. 

On  the  evening  of  the  10th  the  Alabama  herself  left  port,  the  United 
States  steamer  San  .lacinto  having  appeared  in  the  otling.'-'  On  the  af- 
ternoon of  the  20th  she  joined  the  Agrippina,  and  the  two  ran  together 


At  .Mi.rlinMiu 


'  Am.  App.,  vol.  vi,  p.  338, 

-  Ihit.  Case.  pp.  100,  101,  104. 

'  Ibid.,  p.  104. 

'  Ibid. 

"Am.  App.,  Counter-Case,  p.  10l;5. 

"  Ihit.  Case,  p.  10'). 

'  Hrit.  App.,  vol.  i,  p.  '214  ;  Brit.  Ca.se,  p.  10r>. 

■^  Brit.  Case,  p.  107. 

''  Brit.  App.,  vol.  i,  p.  2r»7;  Am.  App.,  vol.  vi,  p.  4ill. 
'"Brit.  App.,  vol.  i,  p.  '2V.I 
"Am.  App.,  vol.  vi,  p.  4i)l. 
'••  British  Case,  p.  107. 

TIfE    ALA15AMA. 


97 


to  tlioir  concerted  aiicliDiM.u'i'  in  l>l;iiu|ailla,  '"  om>  of  tliosii  litMc  coral 
islaiuls  that  skirt  the  South  Anu'ricaii  coast,  not  yet  fully  adapted  to 
the  liabitation  of  man."' 

Thej'  retnained  there  live  days,  the  Alabama  coalinn'  and  making 
other  necessary  preparations  lor  sea,  when  the  eoal-sliip,  which  had 
still  another  supply  of  coal  on  board,  was  dispatc'ied  to  another  I'ejulex- 
vous,  the  Areas,  little  islands  in  the  tlulf  of  31exico,  off  the  coast  of 
Yucatan.-  This  new  rendezvous  was  reached  by  both  vessels  on  the 
L'.'ld  of  December.'  The  Alabama  remained  at  the  Aicas  a  week,  coal- 
inji",  repairinii',  and  relitrin;';.  \t  the  end  of  ihai  tiiae  the  Aj^rippina 
was  j)ut  under  sailinj''  orders  for  Liverimol  to  report  to  Captain  I'.ullock 
for  aiu)ther  carj^o  of  coal,  to  be  delivered  at  Fernando  de  Noronlia, 
another  rendezvous  aj;ieed  upon.' 

On  the  11th  of -lanuary  Captain  Semnu's  eiij;a;4ed  andsutdc  the  United 
States {^un-boat  Ifatteras  twenty-five  miles  southeast  of  (Jal-     i,,.,r„  .ti,.  ii,t. 
vcston,  Texas,  one  of  the  ports  of  the  insurgents,      lu  the-  '"' • 
oiijiaffcment  the  Alabama  received  "  six  larjj;e  shot-holes  at  the  water- 
line."5 

On  the  evenin.i>"  of  the  20tli  she  arriveil  at  Port  l*oyal,  in  the  island  of 
Jamaica,  and  within  the  Jurisdiction  of  Her  Majesty's  Gov- 
ernment, "  to  repair  damaj^es  sustained  in  the  action,"  and  t,ry'2A"\^l\:Cvn'!^'r^ 
to  land  jn-isoners.''  The  distance  from  the  place  of  tlie  en-  "'  ""''•'""""''• 
yagement  to  .lamaica  was  about  Ufteen  hundred  miles.  On  arriving 
Captain  Semmes  applied  to  the  naval  olTicer  in  command  at  the  station 
for  permission  to  land  his  prisoners,  repair  dama<4es,  and  to  receive  coal 
and  supplies,  stating  it  was  absolutely  necessary  the  damages  "  should 
be  rejiaired  before  he  could  proceed  to  sea  with  safety.""  This  was  the 
first  IJritish  j)ort  the  vessel  had  visited  after  lier  escape  from  Liverpool. 

In  this  connection  it  will  be  recollected  by  the  Arbitrators  that  on  the 
olsfc  of  July,  after  her  escape,  Earl  liusscll  suggested  to  the  Duke  of  New- 
castle "  the  ju'opriety  of  a  copy  of  the  inclosed  report  (that  of  the  Law-Otti- 
cers,  of  the  L*l)th  of  duly)  being  sent  to  the  (lovernor  of  the  Uahainas."" 

On  the  IGth  of  September,  after  the  receipt  at  London  of  information 
of  the  release  of  the  Oreto  at  Nassau,  the  LawOtlicers  were  inquired  of 
whether  it  would  be  "  necessary  to  modify  the  instructions  sent  to  the 
( Jovernor  of  the  liahannis"  for  the  detention  of  the  Alabama,'^  and  on  the 
-oth  they  replied  that  they  were  of  "the  opinion  that  if  the  vessel  L'90 
should  put  into  Nassau,  she  ought  to  be  there  seized  and  proceeded 
against,  provided  that  there  be  nothing  in  the  condition  of  the  vessel 
when  at  Nassau  teiuling  to  rebut  the  inference  which  the  law-oflicers 
drcnv  from  the  facts  laid  before  them  with  respect  to  the  vessel  wheu 
she  lay  at  Birkenhead." "' 

This  was  after  it  was  known  that  the  Alabama  had  been  armed  and 
ft'piipped  and  had  started  on  her  cruise,  as  that  fact  was  communicated 
oy  Mr.  Adams  to  Earl  liussell  on  the  4th  of  September." 

After  the  necessary  corres[»ondence  between  the  naval  officer  at 
Jamaica  and  the  Lieutenant-Ctovernor  of  the  island,  the  i)ernussion  to 
repair  asked  for  by  Captain  Semmes  on  his  arrival  was  granted.'-  This 
was  reported  to  the  Government  of  Her  jNlajesty,  and  on  the  14tli  of 
February  Earl  l{n.ssell  informed  the  Duke  of  Newcastle  that,  in  his 


'Am.  Ai-p.,  vol.  vi,  p.  i'.H.  '  Ihiii.,  p.  Wl. 

-Ibid.  Ml)i(l.,p. 'J02. 

•'Ilml.  ll.id.,!). '211. 

•'Am.  Ai»i>.,  vol.  vi,  pp.  4l)-2,  4'>;!.  "11)1(1.,  p.  'il2. 

■•Bill;.  Ai>p.,  vol.  i,  11.  -ilit.  "  llii.l..  p.  '2{id. 

'•Brit.  App.,  vol.  i.  p.  -'iu.  '■  Ihltl..  p.  'i(i4. 


7c 


m^ 


08 


ARGl'MKNT    OF    TlIK    UNITKD    STATK.S. 


Ik  ■( 


t  .; 


?!i:  ;,(  ' 


o])iiiion,  tlio  i>i'o('t'<'»liiig.s  of  tlM'  (lovcrnoi'  slioiild  Ito  iii>|)r()vi'(l,  but  lie 
ti'ust«Ml  ''tlie  Aliibiiina  has  bciMi  wained  to  depart  as  soon  as  the  neces- 
sary repairs  are  linished."' 

When  the  Alabama  arri\e<l  at  .laiuaiea,  althon<>h  she  had  on  boanl 
the  ollicers  and  men  of  the  Jlatteras  iis  prisoners,  lour  olllcers  of  Jler 
Majesty's  ship  Challenger,  ibur  of  thci  ('y;;net,  and  one  of  the  (Irey- 
liound,\venton  board  of  her  upon  visits  of  eonrtesy,-and  the  band  jtlayed 
the  tune  called  Dixie  n  Lund  as  a  eoiuplinu'iit  to  her,  "  because  it  is  the 
ordinary  usafteandcustom  amoni;-  the  navies  of  eivili/.e<l  nations  toi>!ay 
complimentary  tunes  to  each  other  on  siu;li  occasions."  '  It  may  hav«' 
been  done  by  the  Junior  ollicers,  "entirely  from  thouf;litlcssness,"an<lthat 
the  "  inconsideiate  yona^'  man  who  ordered  I)i.i'i('.s  Landio  be  i>layed" 
was  "  severely  re[»rimamled  ;"  yet  it  was  done,  and  tlu?  most  c(»rdial  re- 
lations were?  at  once  establishe<l  between  the  ollicers  of  all  these  ships 
(the  lOngiish  s(|uadron)  and  those  of  the  ^Vlaltama."  ' 

"  Tne  fractures  nnule  by  six  lar;;e  shot  or  shell  near  the  water-line     * 

*  required  extensive  repairs,  which  could  not  be  eomj)lcted  by  the 
unskillful  worknu'U  hired  here  before  late  in  the  afternoon  of  the  L'.~>th. 
and  the  Alabama  sailed  at  .S.;>()  of  the  same  eveniufi.''   She  "  was  treated 

*  *  exactly  as  I  [the  naval  commander  at  the  stationj  shall  act 
toward  any  United  Stattss  man-of-war  that  may  hereafter  call  heie." ' 
Why  she  <lid  not  remain  lonjicr  may  be  infeired  from  what  Ca[)tain 
Semmes  said  to  the  A'ice-Acbniral  on  his  arrival,  which  was,  "  Jf  1  re- 
main here  an  liour  more  than  can  be  avoided  I  shall  run  the  risk  of  tind- 
ing"  a  squadron  of  my  enemies  outside,  for  no  doubt  they  will  be  in  pur- 
suit of  me  immediately."'' 

She  arrived  at  the  harl)or  of  Kata  Island  near  the  island  of  Feinando 
de  Xoronha,'  in  the  Jurisdiction  of  llis^MaJesty  the  Emperoi 
of  Brazil,  on  the  4tli  of  April,  ex])ectin;;'  there  to  meet  the 
Agrippina  with  coal.  That  vessel  did  not  arrive  and  Captain  Semmes 
supplied  himself  from  one  of  liis  prizes  taken  ou  the  day  before  he  en- 
tered the  i)ort.' 

While  at  these  islands  waiting  for  his  coal,  Captain  Semmes  cruised 
in  the  neighborhood  and  captured  two  vessels  near  the  shore,  and,  as 
was  claimed,  within  the  territorial  waters.  He  was  entertained  by  the 
governor  and  jnovided  w  ith  horses  to  go  about  the  islan<l.  The  (lov- 
ernor  returneii  his  oflicial  visit  in  uniiorm.  Ui)on  this  becoming  known 
to  the  president  of  Pernandjuco,  he  "  dispatched  an  ollicer  in  the  Bra- 
zilian steam-vessel  Mamanguape  to  inquire  into  these  statements,  to  le- 
quire  Captain  Semmes  to  leave  the  island  within  tweiity-lburliours, and 
to  supersede  the  (lo\  ernor  if  what  had  been  asserted  should  ]»rove  to  be 
true."" 

The  inquiry  Avas  made,  the  Governor  dismissed,  and  the  Alabama  or- 
dered to  leave  the  islands.'" 

This  action  of  the  President  of  the  ProN  ince  was  approved  by  the  Gov- 
ernment of  Uis  ^Majesty  the  Emperor.'' 

On  the  11th  day  of  JNIay,  the  Alabama  arrived  at  Bahia.  The  bark 
Castor  was  also  therewith  coal,  but  the  Government,  "takin,u 
into  consideration  the  circumstances  of  suspecting  that  tlio 


At  Itlitu  Nliri.i 


'  IJrit. 

A] 

)p.,  l>.  • 

>(;s. 

-ll)i.l. 

,  1>. 

•i()S). 

■'Ibid. 

.  t>- 

270. 

^Aiii.  Aji) 

1.,  vol. 

VI,  !> 

.  4'.i: 

"  Hiit. 

Al 

p..  vol 

1,  J.. 

•2(i'.» 

'Ibid 

,  I» 

•204. 

•  Ibid.,  p.  2T(i. 

'~Aiii.  Ap)>.,  vi)l.  vi,  p.  41):5 :  Hrit.  A[ip.. 

vol.  i,  J).  27'2. 
"IJrit.  App.,  vol.  i,  p.  "JT'J. 
'"Ibid. 
'  Ibid. 


bark  h 
permis 
to  be  [ 
She 
vestiga 
but  bet 
was  nn 
in  any 
from  Ji 
proof  ol 
ernmen 
nieasurt 
plied.'' 1! 
On  th 
Cape  C( 
tion  of  : 
Caj)tain 
coasting 
tlie(;ovt 
some  ne( 
the  LTnit 
hama  in  i 
Hngland 
a  reply  t 
tions,  nei 
At  two 
Cai)e  To\ 
Jind  liund 
This  w 
consul,  w 
Tlie  (iovc 
hama  an 
><clf  that 
It  was  no 
deed,  tha 
inquired 
After  t 
Ca]»tain  fc 
for  '*  snj) 
■'cingiiKu 
]>Iies  and 
tor  my  ere 
iion  work 
1  prop().s<» 
coed  with 
icpairs."'" 
The  ves 
^^inion'.s   1 
and  relit,  ; 
tiiiii  Semm 


|) 


Tin:    ALAHAMA. 


09 


the 

r.th. 


le  bark 

Itakin,;;- 

tat  the 


it.Ai>l>. 


Itarlv  had  ^oiic  dircut  to  tliat  iK)it  Ity  iJicconccrtod  aynHMiioiit,  Vi'lusod 
jxTiiiission  decisively  i()  tht-  ('oiiiiiiaiidt'roF  tlie  Ahibaiiia,  who  had  asked 
to  be  permitted  to  receive  the  coal  from  on  board  the  biirk."*' 

kShc  ariivod  at  l>ahia  alter  the  proceed iiij;s  were  coiumenced  to  in- 

vestiyate  the  facts  imputed  to  her  at  Fernando  i\o  Noronha,     ,,  „, ,  („„„ 

l)nt  before  their  conclusion.  Upon  their  concdusion  an  order  !';';l'i';,';"  ,';;'";,„',;;' 
was  made  that  "the  Alabanni  shall  no  more  be  admitted  •"•'"> ""if"! 
in  any  i»ortof  the  empire.  She  woidd  have  sulfered  the  same  exclusion 
from  l>ahia  if  she  had  not  presented  ln'rself  at  that  port  even  before 
l)roof  of  her  culpability  could  be  obtained,  and  before  the  Imperial  (iov- 
ernment,  suri)ri.sed  by  such  audacity,  i'ould  have  been  enabled  to  take 
measures  concerning  the  i)enalty  which  in  such  cases  ouj-ht  to  be  a[)- 
plied."-^ 

On  the  L'Oth  of  duly  the  Alabama  appeared  in  Saldanha  Hay,  in  the 
Cape  Colony,  and  thus  came  once  more  within  the  jurisdic- 
tion of  Her  Majesty's  (lovernment.'  On  the  1st  of  August,  "^  "" 
Captain  Semmes  availed  himself  of  "  an  opportunity  oftered  by  the 
coastiufi:  schooner  Atlas  to  communicate  with  the  Cai)e,"  and  informed 
the  (lOvernor  that  he  luul  arrived  in  the  bay  "  for  the  purpose  of  elfecting; 
some  necessary  repairs."'  On  the  4th  of  the  same  month  the  Consul  of 
the  United  States  also  iuformedithe  (loveinor  of  the  i)resen<'e  of  the  Ala- 
bama in  the  bay,  and  asked  that  she  "should  beat  once  seized  and  sent  to 
I'jiyland,  from  whence  she  clandestinely  es(!ai)ed."''  The(rovernor  (Rinsed 
a  reply  to  be  sent  on  the  next  day  to  the  etfect  that  he  "  has  no  instruc- 
tions, neither  has  he  any  authority,  to  seize  or  detain  that  vessel."'' 

At  two  o'clock  in  the  afternoon  of  the  same  day  (the  .")th)  she  appeared  oft 
Cape  Town,  and,  at  the  entrance  of  Table  J>ay,  within  si<;ht  of  the  town 
and  hundnnls  of  i)ersons,  ca])tured  the  American  bark  Sea  liride.' 

This  was  made  known  to  the  Oovernor  at  once  by  the  United  States 
consul,  who  claimed  that  the  capture  was  "clearly  witliinlJritish  waters."'' 
The  (iovernor  caused  inipiiries  to  be  made  of  the  captain  of  the  Ala- 
bama and  also  of  the  port-cai)tain  and  other  i)ersons,  and  satislied  him- 
self  that  "the  vessels  were  not  less  than  four  miles  distant  from  land."'' 
Jt  was  not  denied,  however,  that  this  was  in  full  si^ht  from  the  town.  In- 
deed, that  was  shown  to  be  the  case  by  the  statements  of  all  who  were 
impured  of  by  the  (Jovernor."* 

After  this  capture  on  the  ."itli,  the  Alabama  came  into  Table  liay,  and 
Cai)tain  Semmes  at  once  announced  totheCic  iior  thathe  had  come  in 
lor  "  supplies  and  repairs,"  and  asked  leave  to  "  land  i)risoners."'  On 
I>ein<;-  inquired  of  by  the  Governor  as  to  the  "  nature  and  extent  ot  suj)- 
plies  and  repairs"  required,  he  replied:  "  1  shall  need  some  provisions 
tor  my  crew  •  *  *  *  ^nd  as  for  rei)airs,  my  boilers  lu^ed  some 
iron  work  to  be  done,  ami  my  bends  require  calkinf;',  beinj;-  quite  open. 
1  proi)ose  to  take  on  board  the  necessary  materials  here,  and  to  pro- 
ceed with  all  dis])atch  to  Simon's  Bay  for  tlie  puipose  of  nnUdng  these 
repairs.'"' 

The  vessel  remained  at   Table   l>ay  three   days   and   then  went   to 
Simon's   IJay,   also   in    Iler    ^Majesty's    dominions,  to  calk 
and  relit,  arriving  there  on  the  IHh.     On  the  way  over  Cap- 
tain Semmes  chased  and  captured  another  American  vessel,  but,  "  t)n 


'  Brit.  App.,  vol.  i,p.  20:?. 
-  IJrit.  App.,  vol.  i,  d.  2W. 
' IJiit.  Case,  p.  ill.' 
•♦liiil.  App.,  vol.  i.  p.  :i(lS. 

'-  ihifi.,  p.  -.m. 


•11)1.1. 

Ml>i.l.,p.  :U'2. 
"Iitid.,  p.  :!i:}. 
"'n>i(l.,pp.  :q8,  31i). 
"  Il)i<l.,p.  :U4. 


Kt  is 

ml 


f.":-*! 


-i  if 
>1 


"^K- 


: 


■i  % 

lit')}  ij*!j 


m  ' 


r 


10(1 


Aina'MKNT    OF    Tin:    I'Mirj)    STATES. 


my  poiiitiii;;"  out  to  liim,"  says  licar-Admiiiil  Walkrr,  "  that  hv  had 
done  so  ill  neutral  waters,  he  assiinMl  iiic  that  it  was  (|iiil<' iiiiinti'iitioiiai, 
nii«I,b('iii;{'  at  a<listaii(;(>  I'l-oiii  the  hiii<i,  lie  did  not  observe  that  he  had  ^ot 
within  three  miles  ol'  an  iina^iiiiary  line  drawn  from  the  Cape  of  (lood 
Hope  to  ("apt'  Ilaiif^lip,  bnt  on  diseoverin^' it,  lu'  did  not  detain  the 
vessel."    This  explanation  was  considered  snllleient.' 

After  the  capture  of  the  Sea  llride,  she  was  hronj^ht  within  a  mile 
and  a  half  of  tlM^  shore.-'  Tpoii  the  representation  «»f  this  tact  l>y  the 
(Jonsnl  of  tlu>  I'^nited  States  to  the  (lovernor,  he  immediately  replie(l  that 
lie  did  not  feel  wairanted  in  takin^isteps  to  remove  the  i»rize  crew,' upon 
the  gronml,  as  he  afterward  said,  that  the  vessel  was  l)roiii;lit  in  thronyli 
"  inadvertence."'  * 

After  his  arrival  at  Cape  Town   on  the  .")tli,  Captain  Sommes"  men- 
tioned to  thedoveiiior  "  that  helett  outside  one  of  his  ])ri/es 
l)revionsly  taken,  the  Tnscahxisa,  which  he  had  e(piipi>ed 
and  litted  as  a  tender,  and  had  ordered  to  meet  him  in  Simon's  i>ay,  as 
she  also  stood  in  need  of  supplies."  •' 

On  the  Stli  this  vessel  jirrived  nt  Simon's  \\,\y.  She  was  ''  a  bark  of 
livc!  hnndred  tons,  with  two  small  ritled  twelve-i>onndei'  jiiins  and  ten 
men,  and  was  captnred  by  the  Alabama  on  the  21st  of  .Imie  last,  olf 
the  coast  ol'  l!ra/Jl,  carf>()  of  wool  still  on  board.''''  She  had  never  Ijeen 
condemned  by  a  i»riz(^  court,  bnt  had  been  commissioned  by  Captain 
Semmes  on  the  liif^h  seas  as  a  tender  to  his  ship,  one  of  his  lieutenants 
liaviiifibci'ii  placed  in  command.'  The ^Vftorney-CJeiieral  of  the  Colony 
was  of  the  oi>inion  that  "  if  the  vessel  receive<l  two  {•uns  from  the  Ala- 
bama, or  other  Confederate  vessel  of  war,  or  if  the  person  in  command 
of  her  has  a  c<munissi(ni  of  war,  or  if  she  be  commanded  by  an  otlicer 
of  the  Confederate  ^«'avy,  in  any  of  these  cases  there  will  be  a  sullicient 
settin**'  forth  as  a  vessel  of  war  to  Jiistily  lier  being  held  to  be  a  .ship  of 


war. 


And  she  was  admitted  into  the  harbor  as  such. 


The  Tuscaloosa  remained  at  Simon's  Hay  until  the  morninj;'  of  the 
nth,  and  the  Alabama  until  noon  of  the  1.1th."  The  Tus(;aloosa  went 
to  Saldanha  IJay,  where  she  found  the  Sea  Jbide,  driven  there,  as  was 
sai(f,  by  stress  of  weather.  r«oth  vessels  remained  two  days,  then  pro- 
ceeded to  Anj;ra  IVriuena  on  the  west  coast  of  Afri(!a,  where  they  were 
afterward  Joined  by  the  Alabama.  On  leaving  the  bay  they  were  coiii- 
municated  with  by  a  steamer.  The  Sea  JJride  and  her  cargo  were  sold 
at  Augra  Peipiena  to  an  English  subject  who  resided  at  Cape  Town. 
The  Tus(!aloosa  also  landed  there  her  (targo  of  wool.'" 

The  Tuscaloosa  and  Sea  lUide  were  ordered  to  Angra  l'e(piena  by 
Ca[)tain  S<Mnnu'S.     "  The  object  of  sending  the  Tuscaloosa  there  was  to 


get  wool  taken  out  of  her  and  replaced   by  ballast. 


Captain 


Semmes  had  previously  had  an  offer  for  the  Sea  Uride,  Avhicli  he  re- 
solved to  accei)t.  *  *  *  A  day  was  fixed  for  both  the  Tuscaloosa 
and  Sea  Uride  to  be  at  anchor  in  the  harbor  of  Angra  requena.  Upon 
that  day  Captain  Semmes  took  in  the  Alabama,  met  the  i)arties  wli(» 
had  made  liiin  the  offer  for  the  Sea  ]>ride,  and  completed  the  sale  ol 


her. 


*     *     The  wool  was  taken  out  of  the  Tuscaloosa  and  landed, 


*     and  is  now  (September  1!))  on  its  way  to  market. 


r  11 


'  liiit.  App.,  vol.  !, 
"  Iliid.,  p.  •.\U\. 
•'Il.i(l.,p. ',{17. 
Ml>i(l.,i..  :!:>•». 
f'Hiif.  Caso.  p.  li;?. 


p.  :}07 


'■Urit.  App.,  vol  i,  p.  'MO. 
■IlM<l.,i».  :{(H 
Ml>i(l.,  p.  :{ll. 
"Hiit.  Case,  p.  li:?. 
"Atn.  App.,  vol.  vi,  pp.  4.")4,  4."). 


'"Forsyth  to  Walker,  Urit.  Aiip.,  vol.  i,  p.  3-J4  ;  Walker  to  Atliuirulty,  ibid.,  p.  32.''.. 


Tlir.    AFwMlAMA. 


101 


\t  Stiiiud  ■)  lliiy , 


Tilt'  iiccoiinl  ol"  tlic  traiLSiK-'tioii,  us  <4iv('ii  \ty  Captiiin  Simuiuu.s  liiinseU", 
is  as  (ollows  : 

Tlio  Tiiscali><».-ii  went  to  si'ii  at  diiylinlit  mi  tlif  I  lib.  ani)  wi-  fitllowcil  ln-r  in  tlio 
Alaliaiiiii  till'  iii'Xt  <la.v.  I'lif  lonncr  was  tu  idinccd  to  Saldanlia  liay,  and  tliriict^  taki! 
till'  Sea  Ki'idf  \vitli  lit-r  tii  t>iit>  of  tin'  iiiiiiilialiiti'd  liailmis,  moiih'  distance  to  tlic  iiortli- 
waid,  and  the  Alaliaiiia  was  fo  t'ollnw  licr  tiiiliit'i'  at'ttr  a  cniisi'  of  a  t't'w  davs  oil'  thu 
('a|>('.  At  l('n;illi,  wiicti  I  siiiiposcd  t In- 'riiscaloosa  and  llic  Sea  IJridi'  had  n'a<'lit'd  tlirir 
dt'stiiiation,  1  tilled  away  and  I'ollnwed  tlieiii.  ( )ii  llie  nioniini;  ot'  tlie 'J^tii  of  An,i<;iist: 
Wii  siylited  till'  land,  after  lia\  inj^  lieeii  delayed  liy  a  ileiise  fo;f  for  twenty-fonr  lioiirs, 
and  in  tlio  course  of  llie  afternoon  we  ran  into  ; lie  l>ay  of  An;;ra  I'eiincna  and  ancliored. 
This  was  our  point  of  reiide/vons.  I  found  the  rnscaloosa  and  the  Sea  Uritle  hotii  at 
anchor.  I  had  at  last  found  a  |ioi't  into  which  I  cnnld  take  a  pri/e.  1  was  now,  in 
slioil,  anioii<4  the  JloltentolH,  no  civili/eil  nation  clainiiiuc  Jmisdiclion  over  the  wators 
in  which  I  was  anchoi'eil.  When  at  Ciijie  Town  an  I'^ne'.ish  inerchant  had  visited  me, 
anil  made  nveilnres  for  the  inirchase  of  the  Sea  Ihide  und  her  carK'o.  lie  was  willinjj 
to  run  till'  risk  of  non-cundeninalioii  liy  a  pri/e-conrt,  and  I  could  jnit  him  in  posses- 
sion of  the  prize,  ho  said,  at  some  inlet  on  the  coast  of  Africa  without  the  .jiirisilietioii 
(tlaiiy  livilized  jiower.  1  imiile  the  .sale  to  him.  lie  was  to  rejiair  to  the  j^iven  ren- 
dezvous in  his  own  vessel,  andl  found  him  here,  accoidinj^  to  his  a;;reement,  with  the 
stipnlated  price — alioiit  one-third  the  \alne  of  the  ship  and  car^,'!) — in  f;ood  Eii;;lisli 
siivcrei;;ns,  which,  upon  liciiiff  counted,  were  turned  over  to  the  paymaster  foi'  tlio 
military  chest.  The  purchaser  was  then  pnt  in  possession  of  the  ]>i'i/.e.  I  liail  nuido 
an  arrany;cment  with  othei'  i>arties  for  the  sale  of  the  wool  still  reinaininjj  on  hoard  tho 
Tuscaloosa.  This  wool  was  to  he  landed  at  Anj;ra  J'eiinena  also,  the  purchaser  ajjroo- 
iny;  to  ship  it  to  Ijirope,  and  credit  tho  Confederate,  Stales  with  two-tliiids  of  the  pro- 
ceeds.' 

Oil  the  l(>tli  of  September  tlu^  Aliibiuiiii  ajiaiii  arrived  at  Simon's  IJay.- 
Upon  his  arrival  Caplaiii  Si'innics  iinint'tliatt'ly  waited  upon 
iicar-Admiral  Walker  and  "i'raiikly  expliiiiied''  to  him,  as  the 
Admiral  reptu'ted  to  the  Seereta'V  of  the  Admiralty  on  the  17th,  his 
proccedinos  at  Anjiia  reqnena.'  ( »ii  the  l!Hh  a  full  aeeount,  its  oiven 
l>y('iiptain  Semmes  to  a  re[)orter()n  the  18tii,  was  published  in  the  Cape 
Town  Afo-n.s.' 

("aj)tain  Hemmes  returned  to  the  port  at  Simon's  P.ay  ''  for  coal,  some 
jaoN  isions,  and  to  repair  her  eondeiisino'  apparatus."'  lie  would  not 
have  eome  baek  there,  "  l>ut  his  condensiii<;-  apparatus  got  out  of 
order.'"' 

Tiie  Alabama  remained  in  port  until '.'»  p.  m.  of  the  U  1th,  when,  havin^y 
comph.'ted  her  repairs  and  taken  on  a  supply  of  eoal,  she  .sailed  for  the 
Indian  .seas.  ''  The  otVieers  of  the  station  werci  as  eourteous"  as  before, 
and  Captain  Semmes  renewed  his  "  very  pleasant  intereour.se  with  the 
Admiral's  family."" 

On  the  L*LM  of  Deeember  she  arrived  at  Singapore,  also  within  the  Jiiris- 
dietion  of  Her  Majesty's  Cfovernment,  and  was  su[)plied  witli 
eoal  aiul  provisions.    AVhile  there,  .some  of  the  crew  hav- 
iu,!'"  deserted.  Captain  Semiues  "jtermitted  half  a  dozen  picked  fellows 
to  eome  on  board,  to  be  shij»i)ed  its  soon  as  we  should  get  out  into  the 
strait."" 

On  the  20th  of  I\Iareh  tlie  Alabama  again  arrived  at  Simon's  IJay. 
Captain  Semmes  was  "  permitted  to  receive  ii  sup[)ly  of 
eoal,  and  complete  i)rovisions,"  after  which  he  put  to  sea  on 
the  lioth."  J'rom  there  she  pro(;eeded  to  Cherbourg  in  France,  at  which 
place  she  arrived  on  the  11th  of  June.  On  the  IDth  she  left  that  port  to 
engage  the  United  States  steamer  Kearsarge,  and  wassuidc 
in  the  engagement,  many  of  her  ofllicer.s  escaping  to  Great  k. ;,»',«'. ''',)u'')'i!»" 
IJritain  in  an  I  -tglLsh  yacht  which  came  out  from  Cherbourg 
to  witness  the  .  :tion.'" 


;ils  ami  prnvisiijllf.. 


'Ain.  App.,  vol.  vi,  p.  498. 
2  Brit.  Case,  p.  11.''). 
•'  Brit.  App.,  vol.  i,  p.  32.''>. 
^Aiii.  App.,  vol.  vi,  p.  45:{. 
■'■  Brit.  App.,  vol.  vi,  p.  '.125. 


''Am.  App.,  vol.  vi,  p. 
■  11)1(1.,  p.  491t. 
«Ibid.,  p.  oOl. 
"Brit.  App.,  vol.  i,  p. 
"J  Brit.  Case,  p.  11(5. 


4.5.5. 


w 


102 


AKGl'MKNT    OF    THE    UNITED    STATES. 


Thus  it  will  be  soon  that  in  a  ciniso  of  about  two  yoais,  tlio  Alabauiii 
rocoivoil  all  bor  lopairs,  pi'ovions  to  bor  arrival  at  (.'borbourji', 
Kniiii7rrXwl>Tw'':  (oxcei)t  sucb  as  ooubl  bo  made  in  the  oi>en  soa  or  at  an(!hoi'- 
.igos  found  in  uninhabited  i.slands,)  in  the  ports  of  Great 
Britain.  Sho  was  supplied  with  coal  from  Great  lUitain  oxolusively, 
except  once  when  it  was  taken  from  one  of  her  ]>rizes  and  once  at  Bahia. 
This  last  would  not,  however,  have  boon  allowed,  had  the  facts  in  rela- 
tion to  her  conduct  in  the  waters  of  Jlis  ^lajosty  the  Emperor  of  Brazil 
been  known  at  the  time.  Having  made  "Bata  Island  the  base  of  her 
oi)erations,  for  to  that  place  she  carried  prizes,  and  from  thence  pro- 
ceeded to  make  others,  which  she  ordered  to  bo  burnt,  after  having  kept 
them  there  some  days  at  the  anchorage  place  of  that  islaiul,''  ]Iis  3[;ij- 
esty  the  JCmporor  of  Brazil  "  ordered  that  the  said  steamer  be  no  more 
received  in  any  i)ort  of  the  Empire."' ' 

The  "toleration"'  of  such  abuses  was,  in  the  opinion  of  His  \rajosty, 
"equivah'ut  to  permitting  the  ports  of  the  Kinpire  to  serve  as  bases  for 
operations  for  the  belligerents.*"-  Tlierofore,  this  first  "disrespect  to 
the  soveieignty''  of  that  Empire  was  followed,  as  soon  as  discovered,  by 
a  i)eremptory  order  of  banishment. 

The  United  States  ask  the  Arbitrators  to  contrast  this  coiuluct  with 
that  of  the  Government  of  I  lor  3Injesty. 

This  vessel  was  built  and  specially  adajtted  to  warlike  use  in  Great 
Britain,  and  in  violation  of  the  laws  of  that  sovereignty.  She  sailed 
from  a  port  in  that  sovereignty,  unarmed,  but  iitted  in  all  respects  to 
receive  her  armament;  she  escaped  after  her  detention  by  the  Govern- 
ment had  boon  detorminod  upon  ;  her  armament  was  constructed  in 
Great  Britain;  her  ammunition,  stores,  and  crew  wore  all  i)rovided 
there;  these  were  shipped  by  tlu'  insurgents  on  boaid  of  English  ves- 
sels in  English  ports,  transported  to  the  waters  of  anothoi'  Government, 
under  the  English  flag,  and  there  transferred.  After  her  cruise  com 
inencod,  her  coal  was  supplied  from  Groat  Britain  in  English  vessels 
dispatched  from  English  i)orts,  with  instructions  to  i)roceed  to  places  of 
rendezvous  arrangO(l  by  "itreconcerted  agreomeut'"  through  agents  of 
the  insurgents,  having  their  places  of  business,  and  carrying  on  the 
operations  of  their  governnu'iit,  upon  English  soil. 

She  sailed  a  distance  of  more  than  tifteen  hundred  miles  to  roach  an 
English  port  after  an  engagement  with  the  enemy  only  t\\<'nty-tivo  miles 
from  cue  of  her  own  ports,  in  order  to  repair  damages  aiul  i  (tit.  AVhilo 
cruising  along  the  coast,  going  from  one  port  to  another  in  iSritish  juris- 
diction, within  cannon-shot  of  the  shore,  and  in  sight  of  the  town  in 
which  was  located  the  seat  of  the  colonial  govornniont  of  Her  ^Majesty, 
she  captured  an  innocent  merchantman  and  "inadvertently"  brought 
it  within  the  toriitorial  jurisdiction  of  Hor  JMiijesty.  AVhilo  again  coast- 
ing between  other  ports  of  Hor  3Iajesty's  dominions  she  again  chased 
and  detained  another  merchantman,  but  upon  being  informed  l)y  one  of 
the  oflicers  of  Hor  JNlajosty's  ^Navy  that  this  was  within  the  jurisdiction 
of  Her  Majesty  the  captain  again  put  in  a  plea  of  "inadvertence"'  and 
released  his  ])rize. 

She  brouglit  an  uncondomnod  prize  into  a  port  of  Her  Majesty  umlci 
pretense  of  a  commission  as  a  tender;  her  oflicers  there  made  contracts 
for  the  sale  to  Her  ^lajesty's  subjects  of  the  prize  cargo  of  this  so-called 
tender,  and  of  the  prize  vessel  and  cargo  taken  within  sight  of  the  land ; 
and,  in  pursuance  of  an  arrangement  made  in  port,  i;ioceeded  to  an 
iinfrequente«l  island,  aiul  comi»leted  the  sale  of  the  uncondomnod  prizes 


'  Brit.  Aiip.,  vol.  i,ii.  m'j. 


-Ibid.,  p.  a'J4. 


THE    AI.Ar.AMA. 


103 


by  (U'livery  iiinl  ro('ei{»t  of  the  imrcliaso-inoiU'V :  ami  af'torward,  in  an 
Eiigiish  i>oit,  hci'.captain  "  pcniiittcd"  a  lew  i)ickcMl  t'l'llows  to  I'oiiie  on 
board  t'oi'  •'  shipMioiit '"  outside  of  the  .jurisdiction. 

All  these  facts,  save  perhaps  the  last,  were  nuid<'  known  to  Iler  Maj- 
esty's Government  as  soon  as  they  occurred,  yet  no  "disrespect  to  the 
sovereignty''  of  IFer  .Majesty  was  discovered:  such  i)ractiees  wer(i 
••tolerated;"  the  vessel,  with  her  officers,  was  at  all  times  and  on  all 
occasions  adndtted  without  hesitation  to  the  hospitalities  of  all  IJritish 
ports,  ami  "treated  exactly  as  any  United  Htates  man-of-war  would  have 
boeii."  In  short,  she  was  permitted  at  all  tinu'S  to  do,  in  the  ports  of 
Great  Britain,  what,  in  the  opinion  of  llis  Majesty  the  ]']mi)eror  of 
Jha/il,  was  "eciuivalent"'  to  their  use  as  the  bases  of  belli<j;erent  oi)era- 
tioiis.  During  all  this  time  no  instructions  were  ever  issued  from  the 
home  Government  which  could,  in  any  maimer  whatever,  embarrass  the 
operations  of  a  vessel  Avhose  Government  Ivm\  so  persistently  abused  and 
insulted  the  power  and  soverei^i^nty  of  Iler  ]\IaJesty. 

As  to  the  vessel,  therefore,  ilie  United  States  believe  the  Arbitrators 
will  Jind  that  she  was  not  only  constructed  aufl  specially  adai)ted  to 
warlike  use  within  iler  ^Majesty's  Jurisdiction,  and  that  due  diligen(!(» 
was  m)t  used  to  prevent  her  departure  therefrom,  but  that  after  her 
departure  she  was  pernntted  to  use  the  ports  and  waters  of  Her  Majesty 
as  a  base  of  naval  operations  a,uainst  the  United  States, 

As  has  been  seen,  the  Tuscaloosa  was  commissioned  as  her  tender. 
lU'fore  her  arrival  Avithiu  the  jurisdiction  of  Jler  ^Majesty's  Government 
at  the  Cape  of  <  lood  Hope,  she  had  captured  and  released  upon  ransonr 
bon<l  one  vessel.  After  her  visit  and  supplies  there,  on  the  loth  of  Se})- 
tenibor,  18(5;;,  she  captured  and  destroyed  one  more.  As  to  her.  Great 
Ih'itaiii  i>ermitted  her  ports  to  be  used  as  a  l>ase  of  belli  oerent  operations. 
In  addition  to  this,  having:  been  coi  .laissioned  by  the  Alabama,  her  acts 
are  to  be  treated  as  the  acts  of  her  piiih  ipal. 


*b'i 


! 


IV 


. 


I 


w 


VIII -THE  (JEOIIGIA. 


i^h'^ 


Tlu'      ( 


NnIon--ty  ni"  ihc 
rnii.-'li'iHiion  .'imi  piii- 
point's  tti  till-  <it:iir-;':;i. 


This  vessel  was  built  at  Dunibiiiton,  on  the  Clyde,  a  lew  miles  below 
Glasgow,  by  William  ])einiy  and  Brothers.'  kShe  was 
launched  on  the  lOrh  of  January,  1803,  and  was  then  called 
the  Virginia.  A  Miss  Xorth,  daughter  of  Captain  ^s^orth,  of  tlu^  insur- 
gent States,  Avas  prominent  at  the  launch  and  gave  the  ship  her  uame.- 
All  this  was  reported  by  the  consul  at  Glasgow  to  31  r.  Seward  on  the 
IGth  of  January.-'  On  the  Dtli  of  (October,  1802,  Mr.  Adams  communi- 
cated to  Earl  liussell  a  eopj'  of  an  intercei»ted  letter  from  the  insurgent 
secretary  of  the  uavy  to  Captain  North,  which  fully  explained  the  posi- 
tion that  gentleman  occupied  toward  the  insurgents.' 

On  the  12th  of  February  an  article  in  the  form  of  a  communication 
apjK'ared  in  the  London  Daily  News  addressed  to  Lord  I'al- 
merston,  then  at  the  head  of  Her  Majesty's  Government,  in 
which  the  attention  of  his  lordship  was  particularly  called 
to  the  <.reat  activity  in  the  ship-building  yards  for  the  construction  of  a 
fleet  of  war-steamers  alleged  to  be  for  the  "  Emperor  of  China."" 
Among  others,  mention  was  specially  nmde  of  the  two  "•  ironclads"  in 
the  yard  of  the  ]\Iessrs.  Laird,  and  also  of  a  steam  ram,  afterward  the 
Pampero,  (or  Canton,)  being  built  by  Thomi)son  IJrothers,  at  (Jlasgow, 
where  they  Avere  subsequently,  w  hen  they  were  api)roaching  completion, 
seized  and  detained  l)y  the  Government.  In  this  article  it  is  expressly 
stated  that,  "  the  term  'Chinese  '  is  in  gemnal  use  in  the  l)uilding-yards 
of  the  Clyde  and  the  ]Mersey,  to  designate  the  Confederates,  and  the 
'  Emperor  of  ('hina'  has  no  otlier  signiticati  ii,  in  this  connection,  thait 
to  iiersonify  Jetfeison  Davis.'""' 

The  Virginia  is  also  specially  mentioned  as  one  ol"  this  class  of  ves- 
sels, and  it  is  then  stated  that  "the  Government,  iiideed,  professes  a 
policy  of  non-interferen<;e;  but  such  a  profession  ih  neutralized  by  tlir 
moral  support  which  the  noble  lord,  the  Secretary  of  ]'\)reign  Alfairs. 
lends  to  the  rebellion,  when,  in  his  i)lace  in  I'ailiauienl,  he  expresses  the 
view  that  the  'subjugation  of  the  South  by  the  North  wouhl  be  a  great 
calamity.*"'  On  the  17th  of  February,  anothei-  aitiele  ai»]>eaied  as  ;; 
conununication  in  the  sanu^  i)ai)er,  addressed  in  the  same  lorm,  in  which 
this  language  is  used  :  '•  It  is  simply  ineredibh^  that  it  (the  Government) 
alone  is  not  cognizant  of  liu-ts  notorious  in  commercial  circles,  and  the 
evidence  of  which  is  more  easily  accessible  to  its  agents  than  to  look- 
ers on."'' 

It  is  <|uite  true  that  these  were  anonynn)us  communications  in  a  news- 
pai)er,  but  tJie  iM'Wspapcr  was  oiie  of  a  large  circidation  and  important 
political  intbu'uct^  in  ivondon,  and  the  articles  professed  to  state  facts. 
One  of  these  facts  was  that  many  vessels  were  being  built  in  Great 
Britain,  intendetl  for  vessels  of  war;  ai:d another,  that  it  was  pretended 
they  weic  for  tlie  Emperor  of  China. 
The  Oreto  and  the  Alabanui  had,  before  that  time,  escaped  from  Eng- 


'  Hiit.  A|>i».,  vol.  i.  |).  A-S.l 
'^Aiii.  Aint.,  Vol.  vi.  p.  r>0.t, 
'll.i.l. 


MJrit.  Aj)]).,  vol.  i,|i.  2U>. 
"Am.  App.,  vol.  vi,  p.  oOo. 
"lliiil.,)t.  r)Oi>. 


THE    (JEORGIA. 


105 


lisli  ports  under  luotcnse  of  boiug  iiitoiidod  lor  foroi,i>ii  yovoninioiits. 
They  were  then  under  the  tlas"  of  the  insurgents,  engaged  in  the  destruc- 
tion of  the  commerce  of  the  United  States. 

It  now  appears  that  Jler  3Iajesty's  Government  had  amph^  nutans 
witliin  its  own  control  of  determining  which  of  the  vessels  referred  to 
in  these  articles  was  and  which  was  not  intended  for  "the  Emperor  of 
China/'  The  real  Ohinese  Government  had  an  "agency"' at '•(>  'kittle 
(teorge  street,  Westminster,  London."  As  early  as  the  lOth  of  {Septem- 
ber, 1802,  ]<]arl  llussell  caused  a  letter  to  be  a<ldressed  to  ]\Ir.  Lay, 
"inspector-general  of  Chinese  customs,  theu  on  leave  in  England,"'  in 
which  it  was  said: 

It  appeal's  to  Her  Majesty's  (iovernnioiit  that,  unless  you  are  ali'eady  providi'd  with  a 
Avritteii  ar.thority  fioiu  tlie  Cliiuei-e  (ioveniiiieut  tor  tlie  stei).s  wliifli  you  are  takin<f  to 
jirovide  tliat  Goveruuieiit  with  naval  asvsistauee,  you  should  jtrocure  such  authority; 
and  I  am  aeeordingly  \o  re(|uest  tl)at  yon  will  take  ste]»s  for  ohtainiufj;  such  autliority 
as  soon  as  ])ossil)le,  althonj;h,  in  tin;  meanwhile,  Her  Majesty's  (iovei'nnient  ar<^  ])i'e- 
pared  to  act  on  the  assurances  ot"  Mr.  ]5ruce.  a'ld  not  inter])osu  any  delay  in  your  pro- 
cutdinjjs.-' 

Tho  Mr.  ]>ruce  referred  to  in  this  letter,  the  United  Stater,  infer  from 
the  corres])onden(.'e  which  afterward  occurred,  to  have  been  Sir  F.jd- 
erick  Jjnu;e,  who  was  at  that  tiuu?  the  representative  of  /Ter  3Iajesty's 
Government  at  Pekin,  and  who  subsequently  succeeded  Lord  J>iyons  at 
Washington. 

On  the  0th  of  October.  ]\Ir,  Lay  addressed  a  letter  to  the  ]'(ueigu  Ollice 
from  tlie  "Chinese  goverinnent  agency,  (>  liittle  George  street,  West- 
minister," a  copy  of  which  is  as  follows  : 

My  ahsenci!  from  Eni;land  has  ])revented  my  rerriviiiu;  hefor"  yesterday  your  let*^er 
of  the  litth  Septemlier.  With  referenco  to  l^arl  IJiisstdl's  desire;  that  1  should  ohtaiii  .a 
written  authority  fi'oni  the  Cliinese  uovernnu'nt  for  the  steps  1  am  takinjj;  to  )»rovide,  it 
with  naval  assistance.  1  have  the  honcu-  to  state  that  1  hold  such  wiitteu  authority, 
dated  the  l.'ith  March,  1 '■'(it*,  from  u\y  locinn  /ckco",  Mr.  Halt,  to  ])urchasc  and  eipiij)  a 
steam  fleet,  in  accordance  with  instructions  from  the  imiierial  ;j;overnmeiit.  1  have 
since  rec<'ived  rennlar  remittances  from  the  f<>reii>n  ciistiims  for  that  purjiose,  by  direc- 
tion of  J'rincc!  Kun;;-.  1  may  add  for  his  lordship's  iuforniation,  that  on  tli<'"J-th  of.June 
last  I  received,  thruui;h  Mr.  Hart,  a  dis[>atch  (rom  the  Chinese  I'orei^n  Otlicc;  relative. 
to  the  proposed  lleet.  This  dispatch  jtrays  the  insiiector-;^eiieral  of  cnst(nns  in  earnest 
terms  to  use  the  utmost  dispati'h  in  iirociirin^'  the  vess(ds.  It  ii'i»eats  the  instrnctions 
issued  to  the  ;jovernors  of  various  provinces  as  to  the  ainoinits  to  he  eoiUrihnted  by 
them  toward  the  cost  (d' the  llcei ;  refers  to  the  Emperor's  anxiety  that  ud  timo  l)e 
lost ;  an<l  closes  with  a  second  earnest  apjx'al  to  the  iMs])ector-i;eneral  for  these;  reasons 
"not  to  lose  a  day."  With  respect  to  tlie  lla,i>'  for  the  tleet.  1  lia\'e  wiitten  for  lueciso 
authority.     As  soon  as  I  receive  it,  1  will  not  fail  to  ajtprise  Earl  Kiissell  of  thi;  fact.' 

Tlie  sub.seqiUMit  correspomh'iice  i)receding  the  17th  I'-ebruary,  ISO;?, 
is  not  given  l)y  Jler  ^Majesty's  Gownnment  in  the  documents  and  evi- 
dence luesented  for  the  consideration  of  the  arbitrators ;  but  it  is  stated 
in  the  JJritish  Case,  ou  page  47,  that  "  in  March,  iSiJi!,  theCliiiu'se  Gov- 
ernnu'ut  gave  authority  to  Mr.  Lay,  inspector-general  of  Chinese  cus- 
toms, theu  on  leave  in  J'higlaiul,  to  i)urchase  ande(|uii)  a  steau)  lleet  for 
the  Emperor's  service,  and  a  sum  of  nu)ney  was  phtceil  at  his  (lis[iosal 
for  the  purpose.  3lr.  Jiiiy  accordingly  entered  into  an  jigreement  with 
Captain  Sheranl  Osborn,  an  ollicerin  II -^r  Majesty's  navy,  accoiding  to 
wiiicii  the  latter  was  to  take  comnunul-in-i-hief  of  the  fleet,  receiving 
orders  from  the  Chinese  GovenmuMit  throngU  Mr.  Lay.  Ifer  Majt^sty's 
Government,  by  orders  in  council,  gave  permission  to  enlist  otlicers  and 
men  for  this  service." 


if 


Ml 


'/ 


M     hi 


4^ . 


I 


^1 

t  fi 


n 


*'n 


■  H 


t5     '  t  tupjktft* 

'■it 


■ 


'  IJrit.  Case,  p.  47. 


-  Brit.  App.,  vol.  ii,  p.  681. 


Ibid.,  p.  <)81. 


■    ! 


lOG 


ARGUMENT    OP    THE    INITKD    «TAT^:S. 


The  Unitod  States  cannot  state  with  certainty  that  such  was  the  fact, 
but  they  liave  reason  to  believe  that  some  of  the  vessels  mentioned  in 
the  lii'st  article  above  referred  to,  published  in  the  London  Daily  Xews, 
were,  in  fact,  beinjj  built  under  the  above-mentioned  arrangement,  and 
Avere,  in  fact,  intended  for  the  "JJmperor  of  China."  Hut  it  is  certain 
that  all  were  not  so  intended,  and  i)articalarly  was  this  the  case  with 
the  Laird  iron-clads,  the  J'ami)ero  (or  Canton)  and  the  \'ir<iinia,  (or 
Geor<4ia.)  It  is  also  certain  that  the  steps  "  taken  to  i)rovide  th(^  Ciii- 
uese  Governmenf  Avith  "naval  assistance"  were  made  use  of  by  the 
insurgents  as  a  cover  to  their  transactions,  and  that  this  was  no  noto- 
riims  in  commercial  circles  as  to  have  become  the  subj<'ct  of  newspaper 
comment. 

When  a  foreign  government  comes  to  the  shii)-yards  of  Great  liritain 
to  replenish  or  strengthen  its  navy,  it  has,  or  should  have,  no  conceal- 
ments. If  at  peace,  it  is  lawfully  there,  and  Her  .AFajesty's  subjects 
may  and  do  invite  contracts  for  that  kind  of  work;  but  in  such  case, 
the  representative  of  the  government  should  do  as  was  done  during  the 
war  in  ihe  United  States  by  the  representative  of  the  Danish  govern- 
ment, who,  "'wishing  tosj)are  Her  Majesty's  Crovernment  all  the  embar- 
rassment possible,  came  forward  and  gave  the  fullest  information  that 
a  vessel  was  being  constructed  for  the  Danish  Govfrnnu'ut."' 

AVhen,  therefore,  as  in  this  case,  vessels  suspected  to  be  for  warlike 
use  against  a  nation  with  which  Great  iJritain  was  at  ])eace,  were  being 
constructed  in  the  sluit-yards  of  the  subjeijts  of  lier  .Majesty,  and  it  was 
said  that  they  were  tor  the  use  of  a  nation  which  could  lawfully  con- 
tract for  their  construction.  Her  ^Majesty's  Government  had  the  right, 
and  it  became  its  duty  at  once,  to  demand  the  '•  fullest  information." 
Answers  Irom  a  nation  that  could  lawfully  (lontract  would  be  promi)t 
and  direct.  There  would  be  no  necessity  for  coincealment,  and  conse- 
quently none  would  be  attempted. 

If  Insi)ector-General  Lay,  or  Cai)tain  Osborn,  had  been  ref|uested  by 
Her  ^Majesty's  Government  to  name  the  vessels  actually  being  con- 
structed under  their  supervision  for  the  Emperor  of  China,  a  ])rompt 
ami  truthful  answer  might  have  been  expected  and  would  doubtless 
have  been  given.  So  far  as  appears,  no  such  reiiuest  was  ever  made, 
and  the  insurgents  enjoyed  the  full  benefit  of  the  omission. 

It  is  quite  true,  that  neither  INfr.  Adams  nor  any  other  rei>resentative 
of  the  United  States,  at  any  time  brought  his  suspicious  as  to  the  \'ir- 
ginia  to  tlie  spectial  attention  of  Earl  liussell,  or  any  otiu'r  olUcer  of  Her 
Majesty's  (Jovernment,  before  she  left  the  Cly<le.  Tlie  Consul  at  Cjrlas- 
gOAv  had  sti'ong  suspicions  as  to  her  character  and  destination,  but  he 
had  not  and  could  not,  with  his  means  of  information,  i)rodu<'e  "  such 
evidence  of  tlui  fact  as  Avould  sui)port  an  indictment  for  the  misde- 
meanor; "  and  nothing  short  of  that,  Mr.  Adams  had  been  informed  in 
.Inly  pre\ious,  in  the  case  of  the  Alabanui,  would,  in  the  opinion  of  the 
solicitor  of<*ustoms  at  London,  furnish  "Justitiable  grounds  of  sei/.ure.*"- 

The  building  of  vessels  for  the  insurgents  upon  the  Clyde  had  but 
Just  commenced.  The  consul  at  Glasgow  had  not  then  perfected  his 
arrangements  for  procuring  information,  as  had  been  done  at  Liverpo(>l, 
where  the  operations  of  the  insurgents  l)egan,  and  had  been  continued 
with  so  much  activity.  (Jonse([uently  the  LJnited  States  could  not  tluMi 
comply  with  the  rules  that  had  been  already  i)rescribed,  and  so  strenu 
ously  insisted  njwn,  in  i)revious  cases,  for  the  guidance  of  the  ollicors  of 


'  Mv.  Eayartl  in  the  Ilonso  <»f  Comiunus,  March  7,  l>3,i4,  Am.  App.,  vol.  iv,  p.  41U>. 
-0'l)()\v<Vs  Opinion,  Hiit.  Cast-,  p.  ltd. 


THE    GEORGIA. 


107 


K-'si-trv.  clparun 


ITor  ^liijosty's  (rovonnuetit  in  such  inattors.  Siu-li,  liowover,  was  not  th«', 
case  witli  liei-  Majosty's  (lovormuont  itself.  It  hail  in  full  (>i>eratioii  ill 
the  niaehinery  by  which  tbi-  years  it  had  been  accnstonied  to  cany  on 
its  police  and  levenne  doiiartments.  It  needed  only  to  i)ut  this  ma- 
chinery into  operation,  and  suspicions  coiUd  l»e  raised  to  the  dignity 
and  importance  of  exidence,  or  set  aside  as  unfounded. 

This  Avas  never  done.  "  Facts  notorious,"'  "the  evidence  of  which  was 
more  easily  accessible  to  the  agents  of  the  (Jovernnient  than  to  lookers 
ou,"  were  passed  by  without  the  notice  of  the  government,  and  this 
vessel  was  pernutted  to  escape. 

JJut  it  is  said  that,  '-when  surveyed  by  the  measurin,!;;'  surveyor,  she 
presented  uothinjjf  ealcidated  to  excite  sns[)icion  ;  that  she  had  the  ap- 
pearance of  being-  intended  for  commercial  puri)oses,  her  framework  and 
plating  being  such  as  are  ordinary  in  trading-vessels  other  class.'"' 

The  surveyor's  certificate  bears  date  February  4.  He  commenced  his 
survey  on  the  17th  of  January,  seven  days  after  her  launch,  and  he 
visited  her  on  two  separate  occasions  afterwards  for  the  purpose  of  com- 
l»leting  his  survey.-  These  visits  must,  tlierefore,  liave  all  been  made 
l>revious  to  the  date  of  his  certificate,  (February  4.)  She 
was  not  registered  until  the  LM»th  of  ^NFarch,  nor  cleared  un- 
til the  1st  of  April,  and  did  not  sail  until  the  LM.  The  evidence  pre- 
sented is,  tlierefore,  only  of  her  appearance  on  the  Ith  of  February.  J  ler 
Majesty's  goverinnent  does  not  a[>i)ear  to  have  caused  any  exanjinatiou 
to  be  made  after  that  time:  or  if  it  did,  it  has  not  seen  lit  to  furnish 
the  arbitrators  with  the  result. 

It  is  true  that  after  slie  had  sailed  and  it  was  known  she  had  already 
been  converted  into  a  cruiser,  the  collector  of  the  port  did  say.  in  a 
report  to  the  connnissioners  of  customs  then  called  for,  that  the  "otUcer 
who  performs  the  tide  surveyor's  duty  afloat,  and  who  visited  her  ou 
the  eveidng  of  the  1st  instant,  to  see  that  the  stores  were  correct,  in- 
forms me  he  saw  nothing  ou  board  which  could  lead  him  to  suspect 
that  she  was  intended  for  war  purposes."'  lie  also  said  that  he,  himself, 
could  "testify  that  she  was  not  heavily  sparred;  indeed,  she  could  not 
spread  more  canvas  than  an  ordinary  merchant  steamer."' 

IJnt  this  can  hardly  be  looked  upon  as  having  the  effect  of  an  exami- 
nation actually  made. 

On  the  14th  of  February,  eight  days  after  the  certificate  of  the  sur- 
veyor, the  first  article  aI)ove  referred  to  appeared  in  the  Daily  Xews. 
Three  days  after,  on  the  ITtli,  the  next  appeared.  The  vessel  renniined 
in  ]>ort  for  nearly  two  months  after  these  suspicions  tissuined  shape  and 
became  "notorious  in  commercial  circles." 

That  she  was  si)ecially  adapted  to  warlike  use  when  she  left  port,  is 
proven  by  the  fact  that,  as  soon  as  the  armanuMit  was  transferred  to 
her,  off  the  coast  of  France  on  the  !>th,  she  set  forth  as  a  vessel  of  war, 
complete  and  r(,>ady  for  active  service.  She  needed,  when  she  left 
Greenock,  nothing  but  arnjs  and  anununition.  Those  were  soon  obtaine«l 
out  of  Her  3Ia.jesty's  domiidous,  and  without  entering  any  i)ort  she  com- 
menced her  work  of  destruction. 

She  was  registered  ou  the  20th  of  .March,  in  the  name  of  om^  "  Tliomas 
liold,  a  merchant  residing  at  Liverpool,"'  '  as  the  owner.  He  was  a  rel- 
ative of  Lieutenant  ]\Ianry,  her  commander."'  On  the  L*7th  she  com- 
nu'nced  shipping  her  crew  at  a   shipping  office  and  btdbre  a  shipping 


'  Brit.  Case,  n.  l->-2. 
-Iltid. 
H.itl. 


Mbi<l.,p.  12:{. 
DiuUev  to  St'Wiinl,  Am.  Apjt.,  V(il. 
vi,  i'>.  -Mil. 


'tit  ' 


i  '  ^. 


.         X  .1 

H  r 


^ 


Uii 

' 


K       -    " 


m 


108 


ARGl'MKM    OF    TllK    INITKIJ    STATES. 


1 1  I 


master  in  Liverpool  for  a  voyage  "  from  Grconock  to  Sin<;;aporo  and 
Ilong-Kong-,  (with  liberty  to  call  at  any  ])ort  or  ports  on  tbe  way,  if  re 
quired,)  and  after  arrival  there  to  be  employed,  in  trading  to  a?id  from 
ports  in  the  China  and  Indian  seas,  the  y<  j»e  to  be  conijdeted  within 
two  years  by  arrival  at  a  tinal  port  of  ..^charge  in  the  United  King- 
dom." '  Uer  crew  left  Liverpool  for  CUasgow  on  the  3Uth  March,^  and 
they  went  on  board  the  vessel  whilst  lying  in  the  Clyde,  oft'  the  port  ol 
Greenock.  '  On  the  1st  April  she  cleared  from  Greenock  in  ballast  for 
Ilong-Kono-. ' 

It  is  said  in  the  Dritish  Case,  page  123,  that  "  the  men  believed  that 
this  was  the  real  destination  of  the  ship."  The  United  States  will  reply 
in  the  language  of  one  of  the  distinguished  gentlemen  who  now  compose 
this  honorable  Tribunal,  the  Lord  Chief  Justice  of  England,  on  the  trial, 
in  18(54,  of  the  parties  indicted  for  i)rocuring  the  enlistment  of  the  men, 
and  say,  "  Xo  doubt  it  was  possible  they  might  have  been  under  the 
delusion  that  the  ship  was  engaged  for  a  voyage  to  China;"  •'  but  they 
think  that,  after  a  consideration  of  the  ailidavits  and  correspondence, 
found  in  vol.  i,  pages  4lL*  to  415,  430  to  439,  and  443  of  the  ]>rit.  App., 
the  Arbitrators  will  conclude  that  such  a  delusion  w.iHhanUy  probable. 
One  witness,  Thomas  ^latthews,  said  in  his  atUdavit,  "  I  understood  that 
the  vessel  was  not  going  to  China,  although  she  would  be  entered  out 
for  that  place;"' "  and  it  is  hardly  possible  to  believe  that  many  of  the 
crew  did  not,  when  they  shipped,  have  the  same  understanding. 

The  steamer  Alar  cleared  from  the  port  of  Newhaven  on  the  4th  of 

Ainil,  for  Alderney  and    St.   Malo,   under  circumstances 

which  attracted  the  attention  and  excited  the  suspicions  of 

the  collector  there.    The  same  night,  after  her  clearance,  about  thirty 

men,  twenty  of  whom  appeared  to  have  been  British  sailors,  and  ten 

mechanics,  arrived  by  train.     Her  agent  admitted  she  had  munitions  ol 

war  on  board.'      She  took  to  the  Jajian  her  armament  and 

e<]uipment,  which  were  transferred  to  her  ott"  the  coast  of 

France,  near  to  jjrest.    This  transfer  was  completed  on  thcevening  ol 

the  9th.     On  the  ()th  the  collector  at  Xewhaven  addressed  a  letter  to 

the  commissioners  of  customs  advising  them  of  the  circumstances  of 

susj)i('i()n  attending  the  cleyrance  of  the  Alar,  and  adding,  "  leaving  no 

doubt  on  my  mind  nor  on  the  ndnds  of  any  iiere,  that   the  thirty  men 

and  munitions  of  war  are  destined  for  transfer  at  se-i  to  some  second 

Alabama."' 

On  the  8th,  Mr.  ^Vjlams.  in  behalf  of  the  United  States,  addressed  a 

note  io  Karl  Jlussell  calling  iiis  attention  to  the  A'irginia 

ini.M'M.i'ti.m'V..  "kIh  [Japan]  and  the  circumstances  of  her  escape,  as  well  as  to  the 

fact  that  the  Alar,  loaded  with  guns,  shells,  shot,  powder. 

&c.,  intended  for  her  e(!uipnuMit,  Mas  then  on  the  way  to  her.    This  note 

was  received  at  Uw/orcif/ii  ojfice  at  12.4.")  p.  m.  of  the  day  of  its  date." 

At  that  tinu^  it  was  supposed  l)y  Mr.  Adams  that  the  vessels  would  proceed 

to,  and  meet  at,  the  island  of  Alderney.     Instructions  were  immediately 

sent,  on  the  request  of  Earl  Kussell,  to  the  otlicers  of  the  (Jovernment  at 

that  station  to  take  such  steps  in  the  matter  as  they  might  be  advised 

to  do  by  their  legal  advisers.'"    Xo  instructions  were  sent  to  the  naval 

ofticers  at  IMvmouth  or  rortsmouth.    X^o  cruisers  were  sent  out. 


Artiini 


■:it    Ml'   \h' 


'  Hrif.  Ai»i».,  vol.  i,  p.  4'H>. 

-  l)ii<Ui\v  to  SiiWiud,  Am.  App.,  vol.  vi,  p.  50!). 

•'  Hrit.  ("laso,  j).  I'lX 

•*  ISrit.  App.,  vol.  i,  p.  407. 

'•Am.  Ai>p.,  vol.  iv,  .">()7 


'"Aibutliiiot  to  Hammontl,  ibid.,  ]>.  401. 


"  IJiit.  App.,  vol.  i,  p.  44;{. 


Koport  of  colli  .!tor,  Biit.  Case,  p.  I'il!. 
Brit.  Case,  p.  ViX 
'  lirit.  App.,  vol.  i,  p.  :Wl». 


Th( 
not  bi 
whicl 
The  h 


Tin:    xiKOKGIA. 


100 


Tlie  Alar  was  of  only  eighty-five  tons  burden.  '  Of  course  slie  eoultl 
not  be  expected  to  take  iier  carjjo  a  grei't  distance.  The  place  from 
Avhich  she  cleared  was  given  by]\Ir.  Adams  in  his  letter  to  Earl  Uussell. 
The  letter  from  the  collector  of  customs  to  the  commissioners  of  customs 
reached  that  department  of  the  Government  in  London  on  the  7th,  and 
was  at  once  transmitted  to  the  lords  commissioners  of  the  treasury.  ^ 
When  the  letter  of  the  collector  reached  the  treasury,  the  Alar  was 
''  lying  to,"  not  having  yet  reached  the  Jai)an.  AVhen  Mr.  Adams's 
letter  reache«l  the  Foreign  ( MUce,  the  tw(>  vessels  had  but. just  Joined  each 
other  and  the  transfer  of  armament  had  not  been  conunenced.' 

The  (lovernnuMit,  however,  acted  only  on  the  suggestion  of  Mr.  Adams 
that  the  vessels  were  to  meet  at  the  island  of  Alderney.  It 
oriirinatcd  no  plans  of  its  own.  It  did  not  institute  any  in-  .  i  irr''>ia'i'.M.vv«,T 
([uiries  for  itself;  it  did  not  even  pay  any  attention  to  the 
sus])icioiis  of  its  own  oflicers.  The  consecpience  was  that  the  vessel 
escaped;  and  thus  Great  IJritain  furnished  the  insurgents  with  another 
completed,  equii)ped,  and  manned  vessel  of  war  ready  to  prey  upon  the 
commerce  of  the  United  States.  The  Navy  of  the  insurgents  by  this  ad- 
dition was  increased  to  three  effective  and  powerful  vessels,  only  one  of 
which  had  ever  entered  their  ports,  but  all  of  which  had  proceeded  from 
the  ports  of  Great  llritain,  with  no  attemi)t  on  the  part  of  Jler  ^fajesty's 
Government  to  prevent  their  departure.  i  these  vessf^ls,  too,  were 

freely  admitted  into  the  ports  of  Great  JJritain  as  vessels  of  war  set  on 
foot  legitimately,  and  without  any  insult  to  the  sovereignty  of  Iler 
.Majesty. 

All  the  facts  in  relation  to  the  escape  of  the  Japan  (afterwards  the 
Georgia)  were  nnide  known  to  Earl  Ifussell  by  Mr.  Adaujs  on  the  IGth 
of  Ai)ril,  through  atlidavits  of  two  men  who  had  left  her  at  Brest.' 

After  her  armament  she  first  made  the  jiort  of  Bahia,  on  or  about  the 
11th  of  May,  where  she  went  to  "  meet  her  cofil-ship,''  the 
Castor,  which  had  been  ordered  there  from  England;^  but, 
after  taking  in  a  part  of  her  supply,  she  was  "  stopped  by  the  au- 
thorities," and  compelled  to  g<!t  the  remainder  from  the  shore.*^  This  the 
T-nited  States  supjmse  was  for  the  same  reason  which  was  assigned  by 
the  Brazilian  (iovernment  at  the  same  time  for  refusing  to  permit  the 
Alabama  to  coal  from  the  same  vessel,  to  wit,  "the  circumstance  of 
suspecting  that  the  bark  had  gone  direct  to  that  port  by  preconcerted 
agreement."  His  Msijesty  the  Emperor  of  Brazil  liad  determined  that 
his  ports  should  not  be  made  a  place  of  rendezvous  .by  belligerents  from 
which  to  carry  on  their  hostile  ojierations.  Banishment,  as  has  been 
seen,  was  his  penalty  for  a  violation  of  his  neutrality. 

Leaving  Bahia  the  Georgia  next  stopi>ed  at  a  desolate  island  called 
Trinadi,  where  it  had  been  arranged  to  meet  the  English 
bark  Castor,  for  coal.  She  remained  (here  about  a  week 
waiting  for  her  tender,  but,  it  not  arriving,  she  sailed  and  captured  a 
vessel  which  she  had  sighted  fiom  jxtrt.  The  prize  was  a  vessel 
laden  with  coal,  from  which  a  supply  was  taken,  and  the  Georgia  pro- 
ceeded on  her  cruise.^  Uer  next  port  was  Simon's  Bay,  in 
('ape  Colony,  in  Uer  Majesty's  dondnions,  where  she  arrived 

'  Ihit.  App.,  vol.  i,  p.  4Ut). 

*  (liirdiu'i-  to  Hamilton,  ISrit.  App..  vol.  i.  p.  40r». 

■'  Stiiteinent  of  the  iiiaHtcT  of  the  Alar,  lirit.  Caso,  p.  125. 

■»  Brit.  App.,  vol.  i,  p.  412. 

'^Cruiso  of  Alabama,  Am.  App.,  vol.  vi,  p.  4'.t:!. 

"ArtidavltH,  Am.  App.,  vol.  vi,  p)t.  .Vi:/,  'y>i,  TriT,  Ac. 

'Am,  App.,  vol.  vi,  pp.  '>2[\,  n-if),  and  .Vi:^. 


Al  r.iihiii. 


At  Trmriili. 


At  Siiiioii\  Hiiy. 


.    i     tl 

*1i 


'''"  ,L 


"f 


i 


£| 


#  < 


IT 


no 


AKGIMENT    OF    TllK    IMTKD    8TATK.S. 


At  C'ii'')Ko'.r«. 


on  tlio  lOtli  of  Aiiji'iist,  i'e(|uiriug'  "coals,  provisions,  and  calking."' 
Slic  remained  tlicie  abont  two  ^^eeks,  locoiving  all  she  needed  without 
objection  on  the  part  of  the  authorities,-  an<l  tlien  started  north.  She 
coaled  at  Tenerille  about  the  10th  of  October,  and  ai'rivcd 
at  Cherbourji',  in  France,  on  the  2Sth  of  the  same  month. ' 
There  she  was  admitted  into  the  Government  docks,  but  "  her  repairs 
were  inconsiderable.'"  *  !She  left  the  roads  and  sailed  from  Cherbourji 
on  the  Kith  of  February,  1S04.  In  the  mean  time  she  was  in  constant 
communication  with  (heat  Britain.  Eecruitment  of  uieu  for  her  account 
was  j^oinj;'  forward  in  Liverpool.'* 
During  her  cruise  after  leaving  Cherbourg  no  prizes  were  made,  ami 
on  the  2d  of  3Iay  she  found  her  way  back  to  Liver]»ool.  ISlic 
had  not  been  a  successful  cruiser.  Her  commercial  value  in 
money  was  worth  more  to  the  insurgents  than  her  ]>owersas  Ji  vessel  of 
Avar,  and,  on  her  arrival,  she  was  dismantled  and  oliered  lor  sale.  Great 
Britain  made  uo  olijection  to  the  use  of  her  ports  for  such  a  purpose. 
Iler  Majesty's  Government  contented  itself  with  a  simple  notice  to  the 
purchaser  that  he  nuist  purchase  at  his  own  risk.  This  notice  may  have 
reduced  the  anu)unt  of  the  proceeds  of  the  sale,  but  it  kept  open  the 
ports  of  Great  Britain  to  the  insurgents  as  a  base  for  their  naval  opera 
tions.  They  had  no  ports  of  their  own.  The  right  of  a  belligerent  to 
make  use  of  the  ports  of  a  neutral  for  the  sale  of  its  ships  of  war  was. 
to  say  the  least,  doubtful.  Great  Britain  had  been  accustomed  to  re- 
solve all  doubts  in  favor  of  the  insurgents.  This  new  experinu'iit  was 
therefore  tried ;  a  sale  was  ellected,  ami  the  proceeds  went 


S:;!|. 


into  the  treasurv  of  the  insurgents. 


'  JJrit.  Ai>i>..  vol.  i,  p.  W7. 
-Aiii.  All]).,  vol.  vi,  ]).  i"'^."). 


•'•  Atlidavit  (if  Slumlcy,  IJrit.  Aji]).,  vol.  i,  ]> 
Qiiccii  cs.  (.'iiiniilu'll,  Am.  Ajip..  vul.  i\ .  p.  Hi: 


■  J5iit.  App.,  vol.  i,  p.  441. 
•  Ibi.l. 
44-:  ii!liila\it  of  Mattbew.*,  ibid.,  p.  41:!; 


IX.-THE  SHLXANDiiAll. 


Itt'rHM'ul   r»»vi»^w  of 

Kit  Htttil  I)  I  I  M  1)  I  ri4 
t.irit  nl'  il  II  u  il  1 1  ;■ 
li.-iic'.-. 


Opou  hostilities  wore  ('DiniiK'uced  l).v  the  iiisui<;cMits  ;ij;iiiiist  the  (lov- 
(M-niiu'iit  of  the  UiiitjMl  States  on  the  llitli  of  .Vprii,  l.Slil,  hy 
an  attack  on  Fort  Sumter,  in  the  harbor  of  Charleston  and 
State  of  South  Carolina,  Trevions  to  that  time,  W.  L.  Yan- 
cey, r.  A.  liost,  and  A.  J)ndley  ^lann  had  been  appointed  l)y  the  insnr- 
jit'iit  presi<lent  "  a  eominission"  to  the  Government  of  Her  JJritannic 
IMajesty.  They  i^roeeeded  to  London,  and  on  the  Saturday  previous  to 
the  nth  (hiy  of  May  (being-  the  4th)  were  admitted  by  Earl  Jiussell  to  an 
informal  interview.' 

On  the  3()th  of  A])ril,  Fraser,  Treidiolm  &  Co.,  a  brancli  at  Liverpool 
of  tho  commercial  liouse  of  John  Fraser  «S:  Co.,  at  Charleston,  became 
the  ""financial  agents  and  depositaries*' of  the  insurgent  Govennneut, 
through  whom  "  contracts  required  abroad  •'  Avere  to  be  carried  out.- 

On  the  10th  of  3Iay  the  insurgent  congress  authorized  tho  president 
"  to  eauseto  be  ])nrchased,  if  ])ossible,  otherwise  to  be  constructed,  with 
the  least  i)ossible  delay,  in  France  or  F^ngland,  one  or  two  war-steamers 
of  the  most  modern  and  improved  description,  with  a  ])owerful  anuanient 
and  fully  cfpiipped  for  service."'  On  the  same  day  another  act  was 
passed  making  an  appropriation  •'  to  enal)le  the  Xavy  ]>ei)artiuent  to 
send  an  agent  abroad  to  purchase  six  steam  propellers,  in  addition  to 
those  before  authoji/ed.'"  Of  the  sums  appro]»riated  by  these  acts  and 
others  which  hadi)receded  them,  "six  liundred  thousand  dollars"  were 
placed  at  once  in  England  and  agents  dispatched  abroad  lo  purchase 
gunboats.-' 

On  the  1st  of  July  the  insurgent  secretary  of  war,  in  a  letter  of  in- 
struction to  a  Mr.  Charles  Green,  who  had  been  appointed  to  go  to  Lon- 
don and  act  with  Cai>tain  Huse  and  Major  Anderson  in  the  purchase  of 
arms,  «S;c.,  desired  him  to  give  or  cause  to  be  given  special  attention  to 
the  shipments.  It  is  then  said,  "  in  this  connection  it  is  proper  to 
remark  that  Cai)tain  Xorth,  of  tlie  Confederate  States  Xavy,  is  now  in 
I'^urope  to  purchase  vessels  for  this  Government,  and  it  is  probable  that, 
being  a  IJritish  subject,  you  might  secure  the  shipments  under  British 
colors.'' '' 

About  the  same  time  James  D.  IJuUock  was  appointed  ''head  agent 
of  the  confederate  navy  in  England.""  ]  le  immediately  went  to  England 
and  established  liis  "headquarters"  at  Liverpool,  in  one  of  the  rooms 
of  the  oilice  of  Frazer,  Treuholm  &  Co.,  the  "  financial  agents  and  de- 
positaries."" 

As  early  as  the  4th  of  July  the  Consul  of  the  United  States  at  that 
port  (Liverpool)  informed  the  head  constable  of  the  city  and  the  col- 
lector of  customs  of  the  port  that  he  had  reason  to  believe  Bullock  had 
"come  to  England  for  the  purpose  of  procuring  vessels  to  be  fitted  as 


'  Jiiis,si!ll  to  Lyons,  Am.  Ap))..  vol.  i,  p.  :{T.  '  Hii(l.,  p.  :il. 

Am.  App.,  vol.  vi,  pp.  '2'J  and  l&i.  >'  Utid.,  p.  :{i). 

"Testimony  of  Priolciiu,  Am.  App.,  vol.  vi,  p.  186. 


\m.  App.,  vol.  vi,  p.  'i\). 


iSAs 


'■■> 

''V 


'»4 


h 


iis-d 


?  >' 


{  -9 
4  J' 


'  Ibid,,  p.  •M). 


'll.id. 


rr 


112 


THK    SIIK-XANDOAH. 


])iivat<'('is  to  cruise  ajraiiist  the  eoinmeree  of  the  United  States,  aii«l  that 
lie  will  make  Liverpool  the  seeiie  of  his  operations."' 

On  the  14th  of  Aujjnst,  the  above  naniccl  eoniinissioners,  having;  on 
"  two  (lill'ereiit  occasions"'  before  '•  verbally  and  nnollicially  informed" 
lOarl  Hnssell  of  their  api)oiiitMient,  took  occasion  to  address  to  him  a 
foiinal  communication  in  writin;.:',  and  in  that  communi<'ation,  anion;: 
other  thinj^s,  said  '*  this  (Jovernment  [that  of  the  insurycntsj  comuMMiccil 
its  career  entirely  Avitiiont  a  navy.  *  *  Tiie  i»i'ople  of  tlu'  Confederate 
States  are  an  a.i<ricnlturaI.not  a  nianufiicturinn'  or  a  commercial,  i>eople. 
They  own  but  few  ships.  *  *  I5nt  it  is  far  otherwise  with  the  peopleol' 
the  present  United  States.  *  *  They  d.)  a  laryc  part  of  the  carrying 
trade  of  the  world.  Tiieir  sliips  ami  commerce  alford  them  the  sinews 
of  war,  and  kei^)  their  industry  ali!)at.  To  cripple  this  industry  ami 
commerce,  to  destroy  their  shii)s  or  cause  them  to  be  dismantled  ami 
tied  ui)  to  their  rottin;;'  wharves,  are  lej^itiinati!  oUje!;ts  and  means  ol 
warfare."' 

()u  the  next  day  (the  loth)  .Mr.  Adams  addressed  I*]arl  lliissell  as 
follows : 

From  iiifonnatioii  lariiislu-d  from  sources  which  iippoiir  to  iiio  (Mititlcd  to  credit.  I 
feel  it  iiiy  duty  to  iipprise  Jlcr  M.-i.je.sty's  (ioveriiiiieiit  tiiat  a  vi(datioii  of  tiie  act  proiiili- 
itiii};  the  tittiiiji  out  of  vessels  for  warlike  imrpose.-i  is  on  the,  itoiiit  of  heiiiy  eominittcd 
ill  one  of  the  |iortsof  (ireat  IJiitain.  vhtMcliy  an  armed  steamer  is  belii^ved  to  he  ahout 
to  ho  dispatched  with  the  view  of  makiii;i;  war  aj;aiiist  tlie|ieo])h)  of  the  Kiiited  StatiH. 
It  is  stated  to  me  that  a.  new  sorew-steamer,  called  tin;  IWsrmiKhi,  ostensihly  owui'd  l)y 
the  commercial  houso  of  Frazer,  Trenludiii  iV-  L((vy,  of  Liverpool,  widl  known  to  con- 
sist in  i)art  of  Americans  in  symiiatliy  with  the  insni'f^ents  in  the  Fnited  Stati's,  is  now 
lyiiijH  at  West  Ilarth^])ool.  ready  for  sea.  She  is  stated  to  carry  J'hif;lish  colors,  hut  t(i 
be  commanded  hy  ti  Frenchman.'' 

To  this  Earl  Itussell  replied  on  the  22d  of  the  same  month  that  he 
had  been  atlviscd  by  the  Law-Otticers  of  the  Crown  "  there  is  not  sutti- 
cieut  evideuce  to  warrant  any  interference;  with  the  clearance  or  the  sail- 
ing of  the  vessel.'*^ 

This  vessel  turned  out  to  be  only  a  "transport,"  and  not  an  "armeil 
vessel  of  war;"  and  the  United  States  admit  that  the  evidence,  then 
in  the  jiossession  of  the  two  Governments,  might  not  have  been 
sulHcient  to  Justify  her  condemnation  by  the  courts  upon  the  i^roper 
proceedings  instituted  for  .such  purpose  ;  but  they  insist  that  the  coin 
plaint  of  Mr.  Adams,  following  .so  closely  as  it  did  upon  the  remarkable 
communication  of  the  insurgents  already  (pioted,  Avas  Avorthy  of  bein;; 
kept  in  the  remembrance  of  Her  ^Majesty's  Secretary  of  Foreign  Affairs. 
As  has  been  seen,  IJullock  contracted  in  Liverpool,  .shortly  after  his 
arrival,  for  the  construction  of  the  Florida ;  not  long  after  a  (contract 
was  made  for  the  Alabama ;  and  later  still,  others  for  the  Alexandn' 
and  the  Laird  ironclads  at  Liverpool,  and  for  the  Georgia  and  Fanipero, 
(or  Canton,)  at  Glasgow.  A  imrchase  was  also  made  of  one  of  Her 
Majesty's  cast-oif  gun-boats,  the  Victor,  afterward  known  as  the  IJap- 
pahannock.^  The  Florida,  A' ibama,  and  Georgia  (the  lirst  two  alter 
having  been  nnuls  the  subje(;t  of  siiecial  comi>laint  by  the  United 
States  to  Her  Majesty's  Government)  escaped  from  the  ports  of  Crreat 
Dritain,  and  their  ravages  ni)on  the  commerce  of  the  United  States 
formed  the  subject  of  much  corresiiondence  between  the  two  govern- 
ments. As  early  as  the  20th  November,  LSG2,  ]\rr.  Adams  called  tlie 
attention  of  Earl  llussell  to  this  subject  by  letter,  and  in  so  doing  saiil; 


'Am.  App.,  vol.  vii,  p.  72. 
-  Am.  Ai>p.,  vol.  i,  p.  '.VM\. 
^  IJrit.  App.,  vol.  ii,  i».  I'.V.i. 


••Brit.  App.,  vol.  ii,  )».  V.]!-'. 
•Am.  App.,  vol.  vi,  p.  174. 


TMi:    SIIKNANDOAM. 


11:5 


••  1  liiivc  tlu!  lioimr  to  intonii  your  lordslnpot"  tlH^  directions  wliic.li  1  have 
HHM'ivcd  from  my  (lovcniiiu'iit  to  soliiiit  r<'(h'(».ss  lor  tli»^  national  and 
private  in.juii«'s  already  thus  snstaincd,  as  well  as  a  more  ellcctive  pre- 
vciition  of  any  repetition  of  sn<*li  lawless  and  injurions  pro«!ei'dinjis  in 
ller  Majesty's  junts  hereafter.'" 

The  Alexandra  was  ina<le  the  snl)j«'et  ofjndicial  proceeding's,  and 
Her  Majesty's  (lovernnient,  thronyh  the  inellieii'iiey  oi'  its  laws  as  ae- 
tiiiilly  administered,  was  comiu'lled  to  i)ay  the  insur,i;('nts  daniaj;'es  and 
costs  lor  the  detention. 

The  iionclads  were  detaine<l,  and,  to  avoid  another  Alexandra  ex- 
perience, were  pnrchased  from  the  insni'uents  by  Her  Majesty's  (lovern- 
nicnt  ;it  a  jnice  which,  the  I'nited  States  have  reason  to  l)elieve,  did  not 
entiiil  ii  pecuniary  loss  upon  the  sellers.  The  Panipeio  (or  Canton)  was 
sci/ed,  and,  hy  arran^^enient  with  the  builders,  a  decree  of  foit'eiture  ob- 
tained, which  was  never  enforced  except  lor  the  detention  of  the  vessel 
until  the  liual  defeat  of  the  insur^^ents.  The  IJaifpahannock  escaped, 
hilt  was  iletained  by  the  (Jovernment  of  I'ranc-e  and  was  nev<'r  made, 
aviiilable  apdnst  the  L'liited  States.  Hut  she  bee. iiiiea  subject  (»f  annoy- 
ance and  vexation  t(»  Her  .M;ijesty's( Jovernment, and  tiiriiishcd  additional 
proof  that,  in  the  midst  of  the  state  of  feelinj;'  whi(?h  surrounded  Her 
Miiji'st.v's  courts  of  justice  in  Kiii;Iand,  her  laws  could  not  at  all  times 
he  made  available  there  to  enforce  her  international  obli^^atioiis  and 
protect  her  from  liability  for  national  vronjis. 

An  offendinji"  ollicer  actpiitted  by  a  Jury  on  a  trial  before  a  Judicaal 
tribunal,  was  punished  by  the  (Jovernment  by  beii:j;'  put  on  half-pay  for 
life. 

The  Xavy  Department  of  the  insnr^^ents  had  and  maintained  its  head- 
(piartcrs  at  Liverpool.  ]>ullock,  the  "  heail  a^'ent,"  issued  his  orders  and 
commissioned  Ins  othcers  from  these  headcpnirters.  His  seamen  were 
recruited  there;  his  oHicers  congrej^ated  there,  waiting  the  i)reparation 
of  the  vessels  on  which  they  were  to  cruise,  and  when  the  vessels  }>'ot 
out  of  port,  clandestinely  or  otherwise,  had  no  difliculty  in  tindiny  the 
means  to  reach  them.  IJounties,  advances,  half  pay  notes,  and  wages 
were  made  i)ayable  and  paid  there.  ^Vhen  a  ship  went  out  of  <!ommis- 
sion  or  enlistments  expired,  orticers  and  other  seamen  made  their  way 
hack  there  to  the  "Department." 

Jn  the  mean  time  the  British  Hag  was  allowed  to  cover  cargoes,  con- 
traband of  war,  intemled  to  pass  a  blockade  maintained  by  the  United 
States  and  su)>ply  the  insurgents  with  the  means  of  carrying  on  their 
operations.  Sliips  were  purchased  by  the  insurgents  intended  for  and 
maintained  as  "transports."'  all  which  were  permitted  to  and  did  sail 
n?ider  the  British  flag.  Constant  complaint  of  this  was  made  by  the 
I'nited  States  to  Jler  i\[ajesty's  (Jovernment,  nn«l  the  reply  uniformly 
came  back  that  interimtional  obligations  did  iu»t  nudvc  it  incumbent 
niion  Jler  Majesty  to  interfere. 

In  the  i'all  of  18(54  the  insurgents  were  again  without  any  available 
Xavy.  The  Florida  and  the  Alabama  had  been  sunk  ;  the  Sumter  ami 
the  (Jeorgia  had  been  dismantlc<l  and  sold  in  JJritish  ports  to  British 
subjects,  the  proceeds  of  the  sales  finding  their  way  from  thence  into 
the  Treasury  of  the  insurgents.  The  Tallahassee  had  succeeded  in  run- 
ning the  blockade  and  iu  making  a  port  of  the  insurgents  after  her 
^luut  though  destructive  career,  but  was  then  held  by  the  blockade 
maintained  by  the  IJiuted  States.  The  Kappahannock  was  held  tirm  iu 
the  hands  of  the  Ci(»verumeutof  France,  ami  thcChickamauga,  although 


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Adaius  to  KusscU,  Nov.  20,  lbl)2,  Aui.  App.,  vol.  i,  p.  tiGG. 


w^ 


114 


AK(il  MK.VT    ()!••     Illi:    I  NI'I'KK    STAI'lvS. 


coiniiiissioiMMl,  wsis  still  ili'tiiiiii'tl  Ity  \hv  lilockinlo.  In  tli*'  tiiciui  time,  thi; 
coiimu'rcr  o\'  the  United  !Stiit«'s  liiul  liiryely  disiippeiuu'd.  Neurly  two 
linndred  vessels,  with  their  earjioes,  had  been  <'oinniitted  to  tlie  thunes.' 
Over  se\«'n  linndred,  with  an  ajiji'rej^ate  of  nearly  half  a  ndllion  oi'  ton 
Ui\jH',  had  been  transferred  lor  self-preservation  from  the  Ha;;'  of  the 
United  States  to  that  of  (Jreat  IJritain.-  All  or  nearly  all  of  this  had 
been  eansed  by  vessels  tit  ted  ont  in  the  ports  of  the  ('lyd«M)r  tlui  Mtuscy. 
They  Inid  ln'cn  nninned  and  snpplied  from  (Jreat  IJritain.  Their  com 
missioned  ollieers  were  ehietly  from  the  insnr;;ents ;  bnt,  they  were  coin- 
missioned  in  (Ireat  Ibitain  and  took  their  orders  ami  departure  there. 

IJnt  there  was  still  left  in  the  frozen  seas  of  the  North  Paciille  a  little 
fleet  of  vessels  fr()m  whieh  it  was  snppose«l  tlu'  tla}>'of  the  United  States 
eonhl  be  tloat«'d  with  safety.  This  Ih'et  was  largely  owned,  an<l  entirely 
otlicered  and  manne«l,  by  bold  and  darinj^'  seamen  who  ma<lo  the  Ar«'tic 
seas  their  home  in  order  that  they  mi^^iit  .supply  the  inhabitants  of  more 
favored  i-eyions  with  su<*h  necessaries  as  those  seas  alone  i)rodnce(l, 
This  little  tleet  destroyed,  and  the  commerce  and  carryiu};  trade  of  the 
United  States  would  In;  substantially  gone.  This  "lef»itimate  object 
a!id  means  of  warfare,"  so  early  brouj^ht  to  the  attention  of  Earl  IJns- 
sell  by  the  "commission"  sent  from  the  insnrj;ents,  would  then  have 
fully  accomplished  its  work.  No  vessels  or  car<;()es  had  been  condemned 
as  prize  and  sold,  bnt  all  had  been  destroyed. 

To  accomplish  this  further  destnu'tion  a  Navy  must  be  provided.  It 
need  not  be  larj^e,  l)ut  still  somethinj;"  must  be  had.  It  could  not  bt* 
obtained  from  France,  because  "no  violation  of  its  neutrality  would  Im- 
I)ermitted,"'  and  work  upon  vessels  of  war  would  not  be  allowed  there 
unless  the  buiUlers  could  satisfy  the  Minister  of  Foreign  Affairs  that  they 
"were,  honestly  intended''  for  a  government  other  tlian  that  of  the  in 
surgents.'  The  minister  of  marine  ther(^  had  also  declare«l  that  siis 
liected  vessels  "should  iu»t  be  delivere<l  to  the  Confederates."' 

The  hospitalities  of  the  i)orts  of  Great  lUitaiu  had  inner  been  refused 
to  a  ship  having  a  commission  of  the  insurgents,  ller  jNIaJesty's  (Jov 
ernmenf  had  acknow  ledged  the  inelliciency  of  her  laws  as  enforced  in 
her  courts  and  executed  by  her  ollieers,  yet  Ifer  .Majesty's  prime  minister 
had  <leclarcd,  from  his  place  in  the  House  of  Comnujus,  that  the  Govern 
nu'ut  ami  people  of  the  United  States  "must  m)t  imagine  that  any  crv 
which  may  be  raised  will  induce  us  (IleriMajesty's  (Jovernment)  toconii' 
down  to  tills  House  with  a  i^roposal  to  alter  the  law."" 

If  by  chance  a  vessel  was  detained,  no  ])ecuniary  loss  to  the  insurgents 
would  be  likely  to  follow,  for  the  money  invested  would  be  paul  back, 
and,  ])ossibly,  a  ])voi^.  be  added.  The  "navy  agent"  and  the  only  clli 
cient  "Navy  Dcpartiitent"  of  the  insurgents  were  still  tolerated  and  per 
mitted  to  maintt.i;'  "headquarters''  at  the  ])rincipal  commercial  port  ot 
the  Empire.  Great  Britain  had  never  yet  resented  an  insult  to  her  noii 
trality  by  the  insurgents.  There  never  had  been  so  great  activity  in 
the  construction  and  i)urchase  of  steamers  in  Great  liritaiti  for  "trans 
ports"  as  at  this  time.^ 

Consequently  the  Navy  Department,  located  in  Great  Britain,  souglit 
there  to  obtain  its  means  of  operation.  A  vessel  known  as  the  Sou 
King,  which,  while  building  at  Glasgow,  a  year  previous,  had  attracted 

'  Am.  App.,  vol.  iv,  p.  446.  ■'Ibid.,  p.  904. 

2  Brit.  App.,  vol.  i,  p.  504.  ''Am.  App.  Counter  Case,  p.  910. 

^ Am.  Ai)p.  Counter  Case,  p.  897.  ''Am.  App.,  vol.  iv,  p.  531. 

'Bullock  to  Memminger.  and  otiuu'  cor  .eispondeucc,  Aujju.st  2:?,  1HH4  ;  Am.  App.,  vol 
vi,  p.  109. 


o 


the   attention  o 
found  ill   port 
Indies.     On  tli 
and  a  bill  of  sal 
ner  of  the  firm 
ent.s.'     This  l>il 
(iovernment  on 
On  the  oth  O 
oflice  in   Lorn 
London  to  lioin 
may  be  reipiire^ 
(M'  .Japan,  or  the 
as  legal  freights 
in  the  United  I 
not  to  exceed  t^^ 
The  Arbitrate 
ciua.stam^es  att( 
eighteen  months 
sal(f  was  tiled  in 
with  secition  7ti  c 
empowered  the  ii 
Kingdom^  for  no 
the  certiti(!ate.'' 
coimnanded  the  i 
Margaret  and  .le 
The  Sea  King 
tidier,  with  a  car 
crew  as  early  as 

On  the  7th  of  ( 
drawn  to  some  sii 
called  the  liaurel, 
by  the  iiisnrg(>iits 
sciitation  of  the  o 
scribed  for  the  ac 
Mr.  A<lams  to  Ka 
■Stli  of  O(!tober  to 
As  early  as  the 
•fournal  of  Comm 
language : 

Jferciir;j;o  is  of  siicii 
Imvi!  tliesli»;iifo.st  (ion 
■■<iil)p()sed  to  1)0  intend 
tain  latitude  <run,s  and 
is  to  take  command. 
we  may  iicre  .state  tli 
linndred  men,  nnwt  ol" 

There  were  erroi 
very  errors  show  i 
that  intelligent  act 
traced  these  rumo 
this  new  escape. 

The  Laurel  did, 

'Am.  App.,  vol.  vi,  p 
■  Brit.  App.,  vol.  i,  p, 
'Ibid.,  p.  496.       '^ 
^  Am.  App.  Case,  p.  1 
Brit.  App.,  vol.  i,  p 


INK    SIIKN.WKOAII. 


I  IT) 


I'.ii.li 
Kinu 


tlic  uttcntioii  ol    till'  (illict'iH  of  tlu'   lJnit«Ml  kStati's  iis  suspicious,  was 

t'oinid  ill   port   on   licr  rctuni   tVoiii  a  voyap*   to  tlic   ICast 

iiidit'S.     On  the  -Olli  Scptt'iiilx'r,  LSdJ,  she  was  piucliascd  ' 

ami  a  Itill  of  sale  yivcii  of  licr  to  the  latlu'r  in  law  ol'tlu*  iiianayiiiH;  part- 

inT  of  llu'  tinn  actinj;'  in  LiNi'ipool  as  "llnancual  ayvnts"  ol"  tlni  insnry- 

(Mits.'     This  hill  olsalc  was  iv;;ist('i«'<|  in  a  public  otiicc  of  licr  Majesty's 

(iovcniiiKMit  on  that  day.' 

Oii  the  ath  ()cti)l)or  a  crew  for  that  xcssel  was  shipped,  at  a  shippiii};- 
oIVkt  ill  London,  and  before  ar  shippiii;;-iiiaster,  for  '•  a  voyage  from 
Loudon  to  IJoinbay,  (calling  at  any  ptats  or  phuH'st)u  the  passage  that 
may  be  required,)  and  or  any  other  ports  or  places,  in  India,  or  China 
or  .Japiiii,  or  the  I'acMlie,  Atlantic,  ov  Indian  Oceans,  tradinj;'  to  ami  from 
as  Ie;;al  freif>hts  may  oiler,  until  her  return  to  a  final  port  of  dischar<j;e 
in  the  United  lvin}>'doin,  (or  C'ontiiieut  of  Kurope,  if  reiiuired;)  voya^j^e 
not  to  exceed  two  years."' 

The  xVrbitrators  will  in  all  this  see  a  striUinj;'  n'semblauce  to  the  cir- 
cumstances atteudiujj  the  puichase  and  sendin^i'  forth  of  the  (Jeorgia 
eighteen  mouths  befoic.  On  the  7th  0(!tober,  at .{  p.  m.,  a  eertilicate  of 
sale  was  tiled  in  the  ollice  of  the  registrar  of  shipi»ing,  in  accordance 
with  section  70  of  the  merchant  shipping  act,  I8r»4,'  by  which  the  owner 
empowered  the  uuister  to  sell  the  ship  at  any  poit  out  of  the  United 
Kingdom,*  for  not  h-ss  than  JC4'»,(K)(>,  within  six  months  from  the  date  of 
the  certificate.'  ller  master  was  Peter  S.  Corbett,  who  had  previously 
commanded  the  insurgent  transport  noiighiss,  afterward  known  as  the 
3iiirgaret  aiul  .lessie. 

The  Sea  King  was  cleared  and  sailed  from   London  on  the  Sth  of  Oc- 
tober, with  a  cargo  of  coal.     8he  commenced  engaging  her 
crew  as  early  as  tlu^  2."»th  September.'' 

Oil  the  7th  of  October,  the  attention  of  the  Consul  at  lii\ei'i>o()l  was 
diiiwii  to  some  sus]>icious  circumstances  connected  with  a  screw-steaimir 
called  tli(!  Laurel,  which  he  understood  had  Ixhmi  recently  purchased 
by  the  iiisurgeuts,'  but  his  knowledge  was  not  such  as  t«)  Justify  a  pre- 
sentation of  the  case  to  Her  iNfaJesty's  (iovernmeiit,  under  the  rules  pre- 
scribed for  the  action  of  its  otlicers.  TluM-efore,  uo  report  was  made  by 
Mr.  Adams  to  l-'arl  Kussell.  She  was  cleared  from  laverjiool  on  the 
Sth  of  0(!tober  for  JNIatamoros,  ik.v,." 

As  early  as  the  I'Jth  October,  an   article  a[»peared  in  the   Liverpool 

Journal  of  Commerce  aunouncing  her  sailingaiid  using  this 

language : 

Jfcrcarfito  is  of  siu'li  a  tiiixctl  luitiirf  lliiit  no  bclli^tM'eiit  Sfiite  \v<>;ii(l 
Imvc  tliosli^flitost  doubt  as  to  its  usi:riiliicss.  »  »  »  iJiit  tln!  L;iiircl  iniisfc  not  lui 
supposed  to  bi)  iut(Midi;il  for  a  cruiser ;  slic  is  uicrcly  a  t(Mid,;r,  and  carries  out  to  a  cer- 
tain latitude  <;uns  and  auiniunition  lor  a  new  scrcw-steanter  of  wliicli  Captain  Seninies 
is  to  take  connnand.  ''  "*  "  To  sl\o\v  tliut  Captain  Stsninies  does  not  ^o  unattended, 
we  may  here  state  that  lie  took  with  liini  on  board  tlio  Laurel  eij^lit  otlicers  and  one 
Iniudred  men,  most  of  whom  served  witli  him  on  board  the  Alabama. " 

There  were  errors  iu  the  statements  cotitaiued  in  this  article,  but  the 
very  errors  show  that  the  air  was  at  that  time  tilled  with  rumors,  and 
that  intelligent  action  at  the  pro[)er  time  by  the  Government  might  have 
traced  these  rumors  to  their  source,  and,  iu  all  probability,  prevented 
this  new  escape. 

The  Laurel  did,  however,  clear  with  the  armament  of  vhe  Sea  King 


Mil  il.-|iiirtiii 


Pr|,;,rliir.>  ..(■  111.- 
l.,iiM'l  »  I  I  li  Im' r 
rirw  itiitl  iiriiKuni'iit. 


'Am.  Ax>p.,  vol.  vi,  p.  560. 
•Brit.  App.,  vol.  i,  p.  41).'). 
'  Ibid.,  p.  41)6. 
<  Am.  App.  Case,  p.  1144. 
'  Hrit.  App.,  vol.  i,  p.  41)5. 


"  Brit.  App.,  vol.  i,  p.  486. 
'  Am.  App.,  vol.  vi,  p.  556, 
"  Brit.  App.,  vol.  i,  p.  492. 
'J  Am.  App.,  vol.  vi,  p.  558. 


116 


AR(il'MENT    OF    THE    INITKl)    Sl'ATKS. 


jiscarpo,  iiiul  with  all,  .save  one,  of  licr  olliccrs  (twciity-f'onr)  ami  soiiip 
(.seventeen)  seamen  a.s  i)a.ssenjnei's.' 

Of  these  otlicers,  five  had  previously  served  on  the  Alabama  alone, 
two  on  both  the  Alabama  and  Sumter,  one  on  ihe  (leoryia  alone,  one  on 
both  the  l{ai)|)ahanno('k  and  (v<'orj>ia,  an«l  two  on  tiie  Ivappahannock 
alone  ;  and  of  the  men,  live  ha«l  served  on  the  Alabama.  TiLiree  of  tlic 
otli(;ers  had  avoided  eai)ture  at  the  time  the  Alabama  was  sunk  in  the 
i'n^ajiement  with  the  lvearsai<;e,  by  eseajte  upon  the  Knj^lish  yaeht.- 

C)n  the  17th  ()»,-toberthe  two  vessels,  the  Sea  Kinjr  and  the  liaurel,  met 
AmvHn.nt  ,.t  .1,.  J't  tiic  isliUid  of  .Madeiia.  They  proceeded  from  thence  to 
the   island  ot  Desertas,  where  the  aiiiiament,  and  the  ofii- 


Mi.ni.ii.liiiili. 


eer.s  and  seamen  who  came  as  passeniicrs,  were,  transferred  to  the  Sea 
Kinf;'.  Is'o  bill  of  sah^  was  ever  <ii veil  by  the  captain  under  the  ceititicatc 
of  sale.  >i^o  ])ur<'hase  moii(\v  was  ]k\U\  th-,'re.  Tiie  ceitbicate  of  smIc 
was  nev«'r  H'turned  to  the  (.ftice  of  the  rciiistiar  in  (Ireat  liritain  as 
was  recpiired  by  section  SI  of  ihe  merchai-,tshippin^'  act,  IS.")!,'  and  tlic 
registered  liritish  character  of  Tiu'  Se;i  Jvini;'  remained  (lurin<i'  her  whole 
career.  Uut  the  armament  transferre<l,  in  the  sanu'  manner  as  had 
l)reviously  been  done  in  the  cases  of  the  Ahibama  and  (Jeorjiia,  the  Sea 
ICinji'  became  the  Shenandoah,  an  insuri^ent  cruiser.  She  had,  however, 
no  sufti(;ient  crew.  Ol'  oflicers  und  men  she  mustered  m»t  to  exceed 
forty-four.  .Ml  the  seamen  weic,  however,  Dritisii  subjects,  and  the 
ofticers  came  together  on  Ibitish  soil  to  be  pluced  on  board  the  new 
cruiser  nnder  the  protection  of  tlie  Ibitish  Jla.u'.  If  a  ship  of  war  of 
the  United  States  had  met  the  Laurel  on  her  passaj;e  and  taken  the.sc 
otlicers  from  her  deck,  (Iresit  Britain  woidd  have  considered  her  neii 
trality  violated,  and  demanded  their  return  auiidst  the  most  active 
pri'parations  Un  war,  as  had  been  proviouslv  done  in  tiie  ea.se  of  tlic 
Trent.' 

It  may  be  admitted  that  if  the  Shenandoah  at  this  jjoint  in  her  his- 
tory stood  alone,  and  there  had  been  no  otlier  cau.se  of  complaint  a;<>ainst 
Her  Majesty's  (Jovernment,  the  llnired  States  eoidd  not  now  hold  Ureal 
IJritain  lesponsible  for  lier  orij;inal  escape  and  armament.  lUit  tliis 
vessel  was  ])urcha.sed  In,  and  armed  fiom,  (Ireat  iJritain,  three  years 
aiul  a  half  after  the  insurrection  in  the  ITnited  States  hail  i)ut  on  tlic 
tbrm  of  war.  The  insurgents  had  tbund  the  laws  and  the  (lovernmeiit 
of  Clreat  IJritain  favorable  to  their  opi-ratioiis.  Tliey  had,  under  tho.sc 
laws  and  under  that  (lovernnuMit,  availcMl  themselves  of  tin;  "ports  ot 
llie  Clyde  and  the  Mersey,"  (their  only  i>orts,)  ami  made  a  navy.  I'li 
der  the  warfare  of  that  navy,  the  commerce  of  the  I'nited  States,  whidi 
at  the  commencement  rivalled  that  of  (ireat  Jbitain,  had  been  trans 
ferred  to  the  I'^njiiish  ila,u'.  Hei-  Majesty's  (io\  «'rnMient  had  never  pun 
ished  the  insur,u('nts  for  any  \iolalion  of  her  neutrality.  It  had  net 
then  even  riMuonstrated.  On  the  contrary,  i(  had  tolerated  ami  thus 
enc»>uraji'ed  violations.  It  .^eems  never  to  liiixc  C(Mu;eived  the  idtii 
which  was  so  siyuilicanfly  piomuljiiited   by  His  Majesty,  the  lOmpei 


01' 


of  Ibazil,  that  toleration  of  abuse  w 


is '•  eipuvau'Ut  to  [lermittinjj;  tln' 


l>orts  of  the  emjtii'e  to  ser\<'  as  bases  I'or  operations. 

'I'he  ne,i;li,u('nce  wlii(di  enaltled  the  Florida  and  the  iMabama  to  escai'i' 
fastens  itself  upon  tlu'  Shenandoah.  The  excessive  hospitality  wliidi 
had  always  been  extended  yave  the  insurgents  to  understand,  as  thcv 
1  iiLrhtfully  nii;4ht,  that  the   ports  of  Her  I\IaJest.>*s  donniiioUM  eouhl  '" 


'  hrit.  A|>|i..  vol.  i.  p.  177. 
-'Sec  'I'ciiiplc's  alliiiasit,   IJrit.  \\ 
Kiiil   Uiissfll.  il.i.l.,  :{71t. 
•' Am.  App.  Cdiiiiter  Ca.sc,  p.  1 1  !,'> 

^  Am.  Case,  p.  H-i. 


.nl.  i,  p.  7(11  ;  iiicldsurc    Xo.  •-'.  ill   Mr.  .\(laiii- 
■'  i>iit    Apn..  vol.  i.  iiiif-c  'i'.'' 


TIIK    SHEN.WDO.Mi. 


117 


iiiadi'   till'  l)as(*s  of  tlicir  naval  operations,  and   in   conseri nonce  they 
(»])('rat('d  IVorn  tlicic,  and  from  tlicve  alone. 

AVhen  the  i'oinniander  of  tli<'  Shenandoali  WW  liiverpool  to  Join  lier, 
lUid  t;'ke  eeniniand,  lie  Iiad  in  his  ]t().ssession  a  letter  {Voni  l>nllock,bear- 
iii,:L;' date  t)f  Octoher,  lS(il;'  and  when  lie  retnrned  iii  Xoveniber,  18(>."», 
lie  addressed  I'^arl  Knssell  as  follows  : 

I  cointiii.ssioiKMl  tlic  sliiji  in  ( )i'tol)t'r,  l.-'()4.  midcr  (iitl<'i'.>  fiiiin  tin-  iiiiv;il  (Icinti'tiiiciit 
of  the  Coiit'i'dciatc  Stiitcs;  iiiid.  in  ]tursn;nici'  of  t  lie  sjinic.  cnmnu'ini'd  ;ii't  ivcly  (M'i.isin<^ 


:1'':mms 


t  til 


('  <  iiciin  s  coiiimcrci' 


.Mv  ordiMs  dirci'tcd  nic  to  visi>  I'lTtiUn 


L'uro  to  Dtiicrs; 


olx'dirncc  tlicrfli)  1  ioiiiid  iiinsi'II'  in  Mmv.  .Iiiim 


Mill 


■;cMs  ni  I 
I  .J 


II IV    () 


n-olcr- 
f  tlii.- 


year,  in  tiii'  ()i<li(tls!v  8t'ii  and  tlic  Ai('ti(.'  Ocean. - 

Thus  she  sta; ted,  under  orders  issued   from  (Jreat  lUitain.  to  reueh 
tlie  most  distant  eommeree  of  the  I'nited  States. 

'  Her  first  ix/int  of  destination  on  the  course  she  was  onhned  to  make 
was  ^Melbourne,  in  Her  Majesty's  domini.tns.  To  that  jiort  a  transport, 
heiU'inji'  the  name  of  John  J'^razer,  (one  of  the  liiin  of  John  Frazer  &  Co., 
at  Charleston,  of  which  Frazer,  Trenholm  vK:  ('(►.,  tin'  Iiiver[)ool  (lejtosit- 
ary,  was  a  branch,)  was  sent  from  Fn;j;land  by  the  insurgent  Navy  De- 
partment with  her  supply  of  coal.' 

Her  ^Majesty's  Crovernment  received  notice  of  tlu'  e(piipiiu^nt  of  the 
Shenandoah,  and  its  attendiuf;'  cii('iunstances,  on  the  llith  November. 
It  came  in  the  form  of  a  report  from  the  ConsiU  of  Her  Majesty  at  Ten- 
eriffe,  and  was  accompanied  by  the  captain  of  the  Sea  King,  undei' 
arrest,  and  atlidavits  of  witnesses  detailing  the  facts.' 

On  the  ISth  JNlr.  Adams  also  communicated  the  sanu*  infornuition  to 
Earl  Kussell,  witii  r.'iditional  altidavits.' 

The  November  mail  from  Europe,  which  arrived  at  Melbourne  about 
the  middle  of  January,  carried  tliere  the  lu'ws  of  her  <leparture  and 
her  conversion  into  a  vessel  of  wai'.'' 

Alter  starting  upon  her  cruise  she  "  boarded  at  sea  the  galley  Kebby 
I'ri nee,  from  Cardiff,  to  the  i)ort  of  IJahia  ;"  and  in  such  act  her  com- 
iiiaiider  opened  the  manifest  of  such  "■  galley,  breaking  the  seal  of  the 
15ra/ilian  ("(Uisulate."'  I'^or  this  offense  His  Majesty,  the  J'^anperor  of 
r>razil,true  to  his  jirinciplesof  enforcing  neut)'a!ity,as  well  as  proclaim- 
ing it,  promulgate(l  an  order  in  the  oflicial  gazette  at  Ilio  tianeiro,  on 
the  L'lst  of  December,  [uohibitiug  *' tiie  entrance  iiito  any  port  oi'  the 
empire  of  said  steanu'r,  or  of  aiiv  other  vessel  commaiuled  bv  tin'  said 
Waddell."' 

On  the  Ur»th  of  Jainniiy,  ISti.!,  she  ariived  at  llobson's  r^a.y,  near  Mel- 
bourne, and  asked  leave  to  coal  and  repair.     Commander     ^,,,„,  ,,  ^,.., 
King,  of  Her  Majci-^ty's  ship  liombay,  then  at  that  station,  '"    '" 
in  reporting  to  Commodore  Wiseman,  under  date  of  the  I'tith,  said  : 

'tlic  criiw  at  ))r('s('nf  consists  of  only  seventy  nicii.  tlioiiiih  liei'  piojier  eoniplenient  is 
one  linndied  and  forty,  'the  men  almost  eiitii'ely  are  stated  to  lie  either  I'jielisli  or 
Irish.  ( 'a|itain  \Vaddeil  informed  me  that  tlu^  Shenandoali  is  fast  under  canvas,  and 
^tc^iiis  at  the  rale  of  ihirieeii  knots;   tliat  sjie  is  tomteen  months  old,  and  was  tnrned 


i;:i(i  a  iiian-of-wai'  on  tin 


an.      lie  also  lold   me  tli.'il  he  had  latelv  destroved  nine 


Anierie.in  vessels.  It  is  suspected  that  the  Shenandoah  was  hitely ''ailed  the  Si'aKiiif;. 
:niil  that  remains  of  t  he  old  let  lers  are  still  |Mree|itilde  ;  Init  of  that  1  cannot  speak 
Ivoni 


personal  oliservation. 


l-'roin   the  paucity  of  liei'  clew  at 


I'l'esint  she  cannot  lie  very  ettieient  for  ti;;litin;;  imrposes." 

The  (Jovernor  of  the  Colon,>  also,  in  n'iK>rti;ig  to  Mr.  Cardwell  under 


Miit.  App.,  vol.  i,  p.  t!ti7. 
lliid..  p.  titi*.     ■ 


■M<iit.  Api>.,  vol.  i.  p.  4^4. 
'•JManchard    ti*    Seward.    Mrit. 


App 


il.  i.  !>.  .■■>f'4. 


Hiil.  App.,  vol.  i,  p.  (i'.K!:   .Vni.  Ap|i..  vol.  vi.  p.  i'l'W.  •  Ain.  Ajip.,  vol.  vi.  p. 


Hiit.  App..  vol.  i.  p.  n 


Uiit,  App.,  vol.  i.  ).,  41i;t. 


Sf,';vi.-(i- 


ft .  mi. 


'i 


ill 


':t. '■"»»!iiM( 


1     i 


""'-  .*v 


lis 


AJUil MINT    Ol'    THE    IMTKI)    STATES. 


the  same  dato,  says  :  "Since  cl(  sin<»'  my  «lisi>atches  for  the  mail,  a  Coir 
lederate  States  steamer  of  war,  ealU'd  the  Shenandoah,  but  sujiposed 
to  have  been  formerly  the  Sea  Kin^-,  has  anchored  in  llobson's  Jiay.'' ' 
She  had  then  on  board  four  hunched  tons  of  coal  reniainin"-  of  lier 
original  sujjply  on  ' 'avin<4'  London,- which  was  a  full  cargo  of  eight 
liundred  and  fifty  tons.' 

Upon  his  arrival  on  the  L*r»th,  Tjieutenant  Waddell  asked  per  nissioii 
of  the  (lovernor  to  make  the  necessary  repairs  aid  sup- 
:;ny"'n,'tk"'\'.''i.','i','.  ply  hiiuself  wltli  coals  to  enable  him  to  get  to  sea  as  soon 
as  ]»ossible ;  also  to  land  prisoners.'  lie  also,  as  iie  came 
into  the  bay,  inforiMed  tlu;  tide-ins])ector  that  his  object  in  visiting  Tort 
Phillip  was  to  hav<'  sonu'  machinery  repaired,  and  to  i)ro(!ure  coals  and 
jp'ovisions,-' 

Thus  the  oHicers  of  lier  JMaJesty's  (lovernnu'ut  at  .Melbourne  were  at 
once,  upon  the;jrrival  of  the  vessel,  informed  tiiat  the  Sea  King,  whicli 
the  Noveniber  nuiil  from  lOurope,  received  a  few  days  before,  advised 
them  had  left  ^JlgIan(l  with  the  intention  of  being  converted  into  a  ves- 
sel to  carry  on  war  against  the  commerce  of  tlie  I'nited  States,"  was 
then  in  jtort  short-handed,  asking  ])ermission  to  repair,  inovision, 
and  coal.  The  recpiest  of  Lieutenant  Waddell  was  taken  under  con 
sideration  by  the  g<»vernor,  who  infoi-nu'd  him  that  it  should  re';civc 
early  attention  and  be  replied  to  the  next  day.'  On  the  n 'vf  ■'  ••  ihv 
executive  couucil  was  specially  snmmoned  by  tlu'  (loverui)''  .^.lil  ;>  ni 
their  advice  the  peiinission  aske<l  lor  was  granted. 

Against  these  hos]»italities  the  Consul  of  t).e  United  States  piotested 
,,„,„,,  „,  ,1,,.  on  the  lilUIi,  anti  in  so  doing  called  the  attentioi!  of  the  g()\ 
"" "'  ernor  to  the  cir<'umstances  under  wliieh  she  had  been  arnuMl 

and  e<piip])ed.  and  of  her  identity  with  the  English  vessel  Sea  Jving. 
Mis  ])rotest  was  repeated  on  the  I'Tth  ami  L'Sth,  but  on  the  iMHh  his  e\ 
cellency  icplied  that  after  ad\  ising  with  the  law-oHicers  of  the  Crown  lu' 
liad  "conu'  totiie  decision  that,  whatever  may  be  the  previous  history  of 
the  Shenandoah,  the  (Jox'ernment  of  tltis  Colony  is  liound  to  treat  her  its 
a  ship  of  war  belonging  to  a  bt'lligerent  i)o\\(M-."'  It  now  ajijiears  also 
that  the  ad\  isers  of  his  excellency  tendered  to  him  their  oi)inion  that  it 
w<mhl  not  be  exjiediei;!  to  call  upon  the  lieutenant  commanding  to  show 
his  commission  fVom  th''  Covernment  of  the  Confederate  States  authni 
i/,ing  him  to  take  command  of  that  vessel  l"or  warlike  ])urposes.  " 

Against  this  decision  the  ConsiU  most  earnestly  ]>rotested,  and  noti- 
lied  his  excellency  that  "the  United  States  Cox'ernment  will  elai:n  in 
demnity  for  the  damages  already  done  to  its  shijjping  by  said  vessel,  aiul 
also  which  may  hereaftei'  be  committed  by  said  vessel  *  *  ni)on  tlic 
shipping  of  the  United  States  of  AnuMica.  if  allowed  to  (h'part  IVoiii 
this  port."'' 

The  comnuinder  of  the  Shemuidoah  having  received  his  ix'rmission  t(i 
I  niv,..n.iiy  ,  „„  rcjialr,  provision,  and  coal,  had  leave  to  take  his  vessel  intu 
'""'"'""""'""'  the  ])ubli(^  docks,  which  were  at  the  time  controlled  by 
private  i)arties  as  lessees.  The  vessel  and  her  ollicers  were  received  witli 
oi>en  arms  by  the  ])eople  of  Mell)on}iie.  The  (lovernor  of  the  Colony  did 
iu>t  dine  with  or  ])arlicipate  in  the  |»ublic  or  i)iivate  hospitalities  t(   M" 


]).  .^(1(1. 


'  JJiiti.sli  Apit.,  vol. 

•■  Am.  A):|».,  vol,  vi, 

:•  Ibid.,  )).  (i:i(). 

<  Hrit.  Ciisf,  (I.  1 14. 

'■  Urit.  App.  ConiitiT  ("ii.sc,  vol,  \.  p.  <! 


Am.  Ajip.,  vol.  vi,  ]>p.  ,')Hf>  iiiid  (i.V.t. 
Ill  it.  Apii.,  vol.  i,  ]).  .^>(l(l. 
Miit.  App.,  vol.  i,  p.  .')!.">;  Krif.  Ciisc,  p.  ]U 
'  llril.  App..  vol.  i.  p.  .V.M. 


J 


ofiicer.s  ( 
aid.'     C 
bore  the 
(.f  the 
liistory 
liospita 

la  she 

belongin 

feeling  \ 

cape,  \va 

was  hos 

had  beei 

(loin  itse 

but  tl 

furnishei 

council  t 

tlic  liospi 

and  that 

Tlie  ve 

not  be  vo 

When 

plenient  < 

lain  Pay  I 

and  lliirt 

flew  one 

niiniber  t 

one  liiind 

iliod  on  t 

lived  at  J 

lo  the  sai 

at  JJe.sert 

tiiose  ujM) 

of  the  cai 

nf  these d( 

and  befoi 

ollicers  th 

Mic  Jiaiirt 

Ml.-  Sea    I 

v:ctic()c 

As  has 

iu.ival  at 

'"  got  hi; 

'iiiiiihei'  SI 

loo  large, 

atleiitioii 

J  oe  (  1)1 

■'aiiuaiy,  i 

'old,  cons 

'iiiist  hav< 

of  V'lifyii 

le,  se( 


I 'ay 


t!  retpu's 

'I'.iit.  A;,, 
Am.  App 
Hiil.  All) 
IImiI.,  p.  ( 


THE    SHKNAXItOAH. 


119 


lUltl 

in 

iUUi 

tlic 
roiii 

on  to 

into 

by 

witii 

(lid 


1^ 


otlie<ns  of  the  vos-sel,  but  the  mayor  of  .Melbourne  and  its  inhabitants 
did."  Crowds  of  people  tioekeU  to  cbtaiu  sight  of  the  "stranger,"  which 
l)ore  the  flag  of  iusurgents  that  were  supposed  to  have  the  synijiathies 
(it  the  English  people  at  home;  and  the  ofiicers  of  the  ship,  "  whose 
liistory  was  so  brief,  but  so  brilliant,''  eoidd  reniembei'  gratefully  "the 
iiospitalities  (►f  ^Melbourne  and  Hallarat.- 

Im  short,  at  ^Melbourne,  "in  Australian  waters,  where  a  vessel  of  war 
belonging  to  the  Confederate  States'"  had  never  before  been  seen,  the 
li'cling  which  at  honu^  had  perniittetl  a  Florida  and  an  Alabama  to  es- 


cape, \Vi 


IS  found  to  exist  in  all  its  Eniilish  vij 


;'or, 


The  insurjient  tla<>' 


was  hospitably  received  and  courted  there,  as  for  nearly  four  years  it 
liad  been  in  the  iK)rts  of  other  Uritish  Colonies,  and  of  the  Cnited  Ivnig- 
doiii  itself. 

IJiit  the  Consul  of  the  ITnited  States  having  faihnl,  ui)on  the  proof 
t'lU'iiished  by  him,  to  induce  theCJovernor  of  the  Colony  an«l  his  executive 
couiuiil  to  act  as  other  nations  had  acted,  ami  refuse  the  Shenando;ih 
the  hospitalities  of  the  port,  set  himself  about  finding  other  testimony, 
and  that  which  would  be  more  elfeclive. 

Tlie  vessel  eanu:'  into  the  port  sh(»rthanded,  and  "  at  pivsent  slictould 
not  be  very  eflicient  for  lighting  ])urposes."' 

When  she  arriNcd  at  Liveritool,  after  her  career  was  ended,  her  com- 
lilenient  of  olhcers  and  men,  acc(U'ding  to  the  report  of  Cap-  i,, ,,„„„„.„,  „i 
tain  Paynterof  Jler  .Majesty's  ship  Donegal,  was  one  hundred  "" " "  >i' H""™ 
and  thirty-three.'  Jler  ollicers  numbered  twenty-six,  leaving  for  her 
crew  one  hiuidred  and  seven.  Temjde,  in  his  aflidavit,  makes  the  total 
munber  »>f  enlistments  on  board  the  vessel,  during  her  entire  cruisi;, 
one  liumlred  and  eleven.  Of  these,  two  di'seited  at  Melbourn(^  and  two 
died  on  the  cruise,  lea\  ing  the  number  of  men  on  board  when  she  ai- 
rived  at  Liver|>ot)l  tlie  same  as  stated  by  Cai)tain  I'aynter.  According 
to  tlie  sanu'  aftidavit,  the  total  crew  on  board,  wh'  n  the  fiauitd  lett  her 
at  Desertas,  including  those  that  originally  canu'.  on  the  Sea  King  and 
those  upon  the  Laurel,  was  nineteen.  Twelve  Joined  her  from  the  crews 
of  the  ca[»tured  vessels  previous  to  hei'  arrival  at  Melbourne;  but  two 
of  these  deserted  there,  leaving,  as  the  aggregate  of  her  ere  \v  on  her  arrival, 
and  before  any  lu'w  recruitnu'ut  only  twenty-nine  men,  and  with  tlu^ 
ollicers  then  on  ln)ard,  IM'ty-four.  The  olhcers  which  left  Liverpool  on 
tile  Jiaurel  numbered  twenty-four.  One,  lieutenant  Whittle,  went  by 
'lie  Sea  Kin i,  am!  one  joined  from  a  whaling-x'cssel  captured  in  the 
V ret ic  Ocean,,  giving  her,  when  she  linished  her  cruise,  twenty-six.'' 

As  has  bet'i!  seen.  Commander  Iving,  when  he  visited  her  upon  her 
a;, ival  at  Melbourne,  reported  her  as  having  seventy  ukmi.  Of  course 
'"  got  his  information  from  the  olliceis,  who  were  not  likidy  to  gix'e  tlu' 
inunber  smaller  than  it  actually  was.  It  vould  not  do  U>  make  it  much 
ioo  large,  because  "the  paucity  of  the  crew"  was  such  as  to  attract  the 
attention  of  the  oflicer.'' 

Tiie  Consul  at  INIc  Iboiu'iU',  in  w : 't  in."  to  Mr.  Adams  on  thelKith  of 
••amiary,  the  day  aftci  hei' arrival,  mentioiu'd  the  fact  that  her  crew,  all 
told,  c(msisted  of  se\  enty-nine  nu'ii.'  lUit  his  knowledge  at  that  time 
nuist  have  been  derived  from  runH)rs  in  circulation  ;  he  had  no  means 
of  vrifying  the  statenu'ut  himscdf.  On  tlu^  loth  lAdjruary.  Captain 
I'ayne,  secretary  of  tn«'  imval  board  at   Midbourne,  wlu)  visited   her  at 

i)t!  request  of  the  Governor,  said  in  his  rei)ort,  "  tlune  appear«'d  to  me 


'  Mril.  A\i\).,  Ctinntcr  Caso,  vol.  \-.  (i.  lU. 
Am.  App.,  vol.  vi.  II.  (ill?. 
Itiil.  A)ip..  vol,  ;.  )).  \[\'J. 
I '"111.,  p.  (iT."). 


'  itiit.  App.,  vol.  i,  p,  701. 


Iliiil..  p.  VM. 


\h 


"iH'.t:   Uiii.  Case.  )>,  l.'.i;. 


Mi 


*■,    A 


^.'H 


*    lis 


r-'    ' 


120 


AKGrMKNT    OF    THE    IMTKD    STATKS. 


to  ho  jiboiit  loity  to  lifty  niPii  on  boiird,  sloucliy,  diity, nnd  niHliscipIiiicd. 
I  ii(>ti('('<l  iilso  a  j^icat  iinnibcv  of  oHu'cis,  and  <'(»nld  not  liclp  rcniai'kiu'j; 
tliat  tlic  nuinl)('r  appeared  ont  ot  all  pro[)oition  to  the  few  men  1  saw  on 
hoard."" 

Silv(\ster,  in   his  de))osition.  as  printed  aiiion.n'  the  docuiiients  suli 
mitted  in  ovideneo,  says  that  when  the  Lanrei  lelt  her  tln^  crew,  inelud 
in,!?  oflicers,  consisted  of  twenty-thr(>e  men.'     This  is  nndouhtedly  a  mis 
take.     It  may  have,  been  a  cdi'rieal  error  in  theoiiyinal  dranjuht  of  the 
deposition  or  in  transo-iltin  <?. 

it  is  clear,  thei'efoi'e,  that  when  the  Shenandoali  reached  .Melbourin' 
sho  was  short-handed,  and  tlmt  an  increas<'  of  her  crew  was  ahsolntely 
necessary  to  make  her  an  etlicient  vessel  of  war.      lOven  after  the  addi 
tions  she  received  at  3Ielhonrne  she  vontinned  short-handed,     ('aptaiii 
Nye,  the  master  of  the  ship  Abiuail,  captnred  on  tin;  27th  of  ."May,  says: 

Tlic  Slicnamloiili,  at  tlic  tiiiic  I  was  taken  on  lidaid,  liail  a  fnll  Cdniiili'incnt  of'(.)'liit 


iMit  was  vci'v  mncli  in  want  of  seamen. 


At  luo  (lifl'erent  times  dm- 


1^-  the  liist  ten  (lavs  tliat  1  was  on  board,  all  hands,  and   my  own  eicw  l)esides,  were 
ohlijU'ed   to  lt(^   n)>  all    ni;cht  workinj;'   the  sh'i>  in  the  ice.     'I'lie  otlicers  and  crew  coiii- 


)>lained  of  heinjj  short-jianded,  and  my 


men  were  uryed  to  Join  her. 


Thirtv-r 


v> 


after  leavin^' 
These  made  p; 


I'^n  Mere,  shipi)ed  from  the  crews  of  vessels  captured 
Diirne,  and  seventeen  of  these  were  from  the  Abigail.' 
f  the  one  hundred  and  seven  on  board  when  the  Sheii 


IliDntii-'  iiif<Mii].'.l  iir 
lllf     (  nnl.'tiii'  l.-<  t  •'  it 


andoah  arrived  ac  Liveri)ool. 

As  eajly  as  the  1st  of  February  the  Consul  set  about  bringino-  the 
fact  that  she  was  short-handed  to  the  knowledge  of  the  government,  aii<l 
he  commenced  procuring  allidavits,  and  employed  his  counsel/' 

On  the  I'd  of  Feln-nary  he  left  with  the  chief  clerk  of  the  law-oftice  of 

the  Crown,  in  the  absence  of  the  Attorney-CJeneral  and  the 

]\Iinister  of'.histice,  at1hla\its  of  three  ])ersons;  on  the  next 

day  he  called  in  ])evson,  with  his  solicitor,  upon  the  Crown 

liaw-OtUcers ;  on  the  next  day,  the  4th,  he  lianded  in  two 

other  afllidavits ;  and  on  Monday,  which  was  the  (Jth,  he  and  his  solicitor 

t-alled  again,  in  i)ursuauce  to  an  appointment  made,  aiul  produce<l  seven 

additional  atlidavits. 

In  nearly  every  one  of  the.si'  aftidavits,  among  the  other  important 
facts  develojH'd,  is  the  one  that  during  the  entire  cruise  previous  to  her 
arrival  at  jMelbourue,  great  efforts  were  made  by  the  olllcers  of  the 
Shenandoah  to  increase  their  crew  by  the  enlistment  of  men  from  tin- 
jirisoners  taken  on  the  <litVerent  i)ri/.es.  For  that  ))nrposc  such  as  would 
not  Join  were  put  in  irons." 

At  this  interview  the  ii'(uisul  was  given  to  understand,  in  fact,  as  lie 
said  in  his<lisi)at<;h  toMr.Seward  sul)se(iuently,the  Law-Otlicers" seemed 
to  admit  that  she  would  be  liable  to  s<'i/-ure  and  condemnation  if  foumi 
in  I'.ritisli  waters;  but  would  not  a«lmit  that  she  was  liable  to  seizure 
here,  unless  she  violated  the  neutrality  proclamation  while  in  this  ])orr. 
and  if  she  did  they  would  take  immediate  action  against  her."' 

From  this  it  appears  that  the  .same  doctrine  prevailed  among  the  liaw 


'  l?rt     t'ase.  p.  l.">.').  ■''reini)le's  alhtlavit,  Hrit.  .\|i]»..  ^ol.  i,  p.  7ll"i. 

-■  ISrit.  Ap]!.,  vol.  i,  i>.  ."(Is.  Am.  App.,  \<)I.  vi.  p.  .MKt. 

■  Am.  -Vpp..  vol.  vii.  ji.  !•:?. 

'See  ])r()te;,t  ('ai»tain  Xiihols,  liril.  App.,  vol.  i,  p.  .'iS!! ;  alHilaxit.  Ihiice.  ihid..  )> 
.">iM :  (.'olhy,  iliid.,  ]».  .V.IT  ;  Sihi'sier.  ihid.,  ]>.  .V.H;  .tones,  iliid.,  |i.  .">!•!•:  I'ord,  ihid..  ]i 
CM:  Ihiie'kett.  ihid.,  i».  lidJ:  iiollJM.  ihid..  p.  tid:! :  SMiidall.  ihid,:  Seott,  ihid..  p.  (lot 
Lindhor,>;',  ihid. 

"Am.  .\pii.,  \ol.  vi.  |i.  .";'<»:   |!iit.  .\p|i..  \  cl.  I,  )).  .'-.'i. 


TflK    S!Ii;NAM)U.\H. 


121 


Olliccrs  of  the  Crown  at   Mclbniii'iic,  wliicli  liad  permitted  tlie  esciiix'  of 
file.  ]"'lori«lii  iit  Nassau. 

AltlioM,nli  that  doctrine  is  now  repudiated  by  Her  .Majesty's  <  iovern- 
nteiit,  it  was  known  at  the  l<'oreinii  Olliee  as  early  as  the  H»th  ol'  Sep- 
tember, lS<iii,  that  the  Florida  liad  been  release(i  at  Nassau  upon  tiiat 
ground,  and  that  ground  alone.  It  was  a  dtxttrine  that  had  a  most  itii- 
jiorrant  bearing  upon  the  constantly  recurring  attem|)ts  at  the  evasion 
otthe  laws  ot  Jler  Majesty  by  the  insur<>ents;  but  it  does  not  app<';ar 
to  have  been  consid<Med  of  snllicient  importance  to  Justify  instructions 
tVdin  Iler  3lajesty's  Home  (lovernment  to  any  of  the  numerous  r^aw- 
Ollicers  ol'  the  Crown  upon  w?;om  the  responsibility  of  these  ])rosecu- 
tions  "in  so  ,<«i'eat  a  measure  rested." 

The  United  States  aj^iree  with  Jiei-  Majesty's  ilovernment  when  it 
says,  as  it  does  in  its  Counter  Case,  that  it  should  not  be,  and  they  hope 
it  is  not.  in  the  i)o\ver  of  Her  ^Majesty's  (iovernment  to  instructt  ajudji'e, 
whether  in  the  United  Kinji'dom  or  in  a  colony  or  depen<lenc(?  of  the 
("rown.  ]iow  to  decide  a  ]>ai'ti«'nlar  ca.s(!  or  <jnestion.  >.'o  Judf«e  in  Her 
Majesty's  dominions  should  submit  to  bo  so  instructed;  no  community, 
however  small,  shoidd  toleiate  it;  and  no  minister,  however  powerful, 
.should  ever  think  of  attem])tiiiji- it.' 

l>ut  the  United  States  cannot  but  think  the  Law-OHicers  of  the  (Jrown 
()ccui)y  a  different  ])osition,  and  that  when  Her  Majesty's  (Iovernment 
sees  so  strikin<>'  an  error  prevailinji"  innonj''  tho.se  whose  duty  it  is  to 
coiidiutt  the  judicial  jnoceeclinfis,  by  means  of  which  international  obli 
nations  are  to  be  enforcecl,  it  is  not  only  the  right  of  the  (Iovernment, 
l)iit  its  imperative  duty,  to  correct  the  error,  and  see  to  it  that  such  im- 
l)()rtai>t  lights  are  in)t  again  "admitted"  away,  to  the  great  injury  of  a 
nation  with  which  Her  Majesty  was  at  i)eace.  A  judge  who.se  duty  it  is 
to  decide  may  not  be  instrin-ted  ;  but  a  mere  agent  whose  duty  it  is  to 
present  a  case  .'V,i  decision  may  be.  If  such  an  agent  fails  in  his  duty 
or  errs  in  his  opinit.n,  and  sneii  error  or  such  failure  in  duty  is  likely  to 
be  r<»peated  by  the  same  or  other  agents,  it  is  neglect  in  a  government 
if  it  fails  to  atte)nj)t.  at  least,  to  ))revent  the  repetition,  and  if  the  repe- 
tition should  all'ect  other  nations  the  go  'rmnent  must  answer  for  the 
i'0Mse(piences. 


Jbit 


iccejding  this<loctrine  of  the  Law-Ottic*  rs  for  the  time  being,  tin 


<'onsul  on  the  llth  of  February  forwarded  to  the  (lovernor  the  atlidavits 
which  he  had  already  i)re.sented  to  the  Law-Otlicers;  and  on  the  10th  lie 
sent  the  atlidavit  of  John  Williams,  who  swore  that  on  the  (Uh  Februa 
ly.  when  he  left  the  ship,  "  there  were  tifteen  or  twenty  men  concealed 
ill  ditl'erent  jtarts  of  said  ship,  who  came  on  board  since  said  Shenan- 
doah arrived  i'n  Jlobson's  May  ;  and  said  men  tohl  me  they  came  on 
lioard  said  Shenandoali  to  join  ship.  That  I  cooked  lor  said  concealed 
tor  sev(  rai  days  before  I  left.  That  three  other  men,  in  the  uniform  of 
the  crew  of  the  said  Shenandoah,  are  at  \v<nk  on  board  of  said  Slienan- 
tinah,  two  of  them  in  the  galley,  and  one  of  them  in  the  engine  room. 
I'liat  said  three  other  men  in  uniform  also  Joined  said  Shenandoah  in 
this  port.  That  I  can  ixtint  out  all  men  who  have  joined  said  Shenan- 
ilnah  in  this  jxnt."  This  was  receive<l  by  the  (iovcrnor  at  ;».;»(>  p.  m.  of 
the  loth,  and  he  made  an  order  that  it  be  referred  to  the  Attorney  (tcu- 
•Tid."-' 

Oji  the  same  day  Cai>tain  I'ayne,  who  had  been  instructed  by  the 
'ioveinor  to  rejioit  upon  the  vessel,  among  other  things,  informed  him 
tliiit  there  appeared  "to  be  a  mystery  about  her  fore-hold,  for  the  fore 

'  itrit.  t'oioitcr  Ca.sc,  )i.  77. 

-'I?rit.  A])]*.,  Cnuiitci"  Ciisc.  vol.  v,  pp.  lit*,  in- 


t%, 


K 


.^ 


\   ^ 


#     I 


H 


« 


■Pi— 


122 


AKGIMKNT    OF    THH    CNITKI*    STATES. 


m 


k  ■  .  ! 


man  of  vlit'  patent  slip,  wlieii  aske<l  to  f»o  down  to  tliat  spot  to  nieasuK' 
luM  lor  tlie  <'iii(l!e,  was  intornuHl  he  could  not  get  to  the  skin  at  that 
l»lace.  The  hatches  were  always  kept  on,  and  the  foreman  states  that  he 
was  infonntul  they  had  all  their  'stull'  there."  ' 

On  the  i;Jth  L'ebrnary  the  following  reports  were  forwarded  to  the 
"lionorable  the  chief  secretary"  of  the  Colony: 

Diitet'tivc  K(!iin«'(ly  r('i>(»rts.  in  rciily  t(»  certain  questions  .sniitiiittcil  to  liini  lor  iii(iiiir.\ 
on  tlio  11th  instant : 

rirst.  Tiiat  twenty  nu-n  liavc  bcfn  (liscliaif'cil  tVoui  tln-SliiMianiloiili  siiuf  licr  airiv;il 
at  this  ]iort. 

.Scfond.  Tliat  ('ai)taiii  ^^';^(l^l(lll  intends  to  sliip  forty  hands  lieic,  who  are  to  hi)  taken 
on  hoard  dniin<f  th(^  nijjht.  and  to  sij^n  artieh's  when  they  arc  ontsiih?  th(^  Heads. 

Jt  is  stated  thai  the.  captain  wishes,  it'possihh;,  to  sliip  loreij^n  seamen  only  :  and  all 
En<>;lishnu;n  shipped  hei'i;  arc  to  assnnn'  a  li)reij;ii  nanic. 

ISlclJi'ath,  I'inlay,  and  O'lhicn.  tlir<'c  Mellionrne  hoardin^-honsc.  keepers,  are  said  to 
he  tMnployiMl  in  u;ettin>;'  the  i'ec|iiisile  nuinher  of  men,  wlioare  to  receive  £(>  ])er  niontli 
\vay;es  and  .€f^  honnty,  iVc. 

I'eter  Kerr.  ;i  sliipvypijilil.  li\  inj;'  in  l>ail\vay  IMaee,  Sanchidncstateil  ahont  a  fortni>;lii 
afi'o,  in  the  hearing  of  scvi'rai  persons,  that  (.'aptain  W'addell  olicreil  linn  C  IT  pi'r  month 
to  shij)  as  (^arpentrr.  A  waterman  named  McLaren,  now  at  Sandridsje.  is  cither  .ilreadv 
enlist(!d  or  ahont  to  he  so. 

The  di^tcctive  has  been  nnable.  up  to  the  prcsMit,  to  collect  any  reliahh'  information 
as  to  whether  ammunition,  iVc.  has  hi^cn  put  on  hoard  the  Shenandoah  at  this  jtoi't.  or 
whether  arran<i(MmMits  ha\'c  i)een  made  with  any  person  for  iiial   i)nrpose. 

(I'liicnt.)  I'or  the  chief  tiimmissioner"s  infoiniation.  ('.  II.  Nicholson,  •superin- 
tendent. 

Mr.  Seolt,  resnlenl  ch-rk.  has  ln^-n  inlornn'd,  in  fact,  he  ovi'rheard  a  ]>erson  re|»ii- 
si-ntcd  as  an  assistant  purser  stalt;.  that  altont  sixty  men  en,na,n<'d  here  were  to  Ite 
slii])|ieil  on  hoard  an  old  sfssid,  hclieved  to  he  the  Eli  Whitney,  to;;cthcr  with  a  (pian- 
t'ly  oi'  ammiMiition,  Ac.  ahont  two  <n  three  days  hi'fure  the  Shcnamhiah  sails.  The 
foiMner  vessel  is  to  lie  cleared  out  for  I'ortland  or  W'arrnambool,  hot  is  to  wait  ontsidi' 
tlie  Heads  for  the  Shenandoah,  to  w  hom  her  car^^o  and  i»ass<'nncis  are  to  1)l'  transt'erri'd. 

('.  II.  Nniiti,s(>.\, 

Siiitcyiiitfuilciit.- 

After  these  reports,  on  the  next  day,  there  caiiie  to  the  Attoriiey-tJeii 
eral  of  the('olony  the  following(;oininuiiicatioii  from  Jjieuteiiaut  W'addell. 
very  significant  when  read  in  connection  with  the  invvious  report  from 
the  police.  '-JJe  jdetised  to  inform  me  if  the  Crown  claims  the  setito  be 
JU'itish  water,  three  miles  from  Tort  I'hilii)  Head  lights,  or  from  a 
strtnght  line  di-awn  from  Point  Lonsdale  tnid  Schanck.'"  ' 

Upon  the  recei>tion  of  this,  the  Attorney-deneral  sent  ti  note  declin 
ing  to  give  the  informiition  asked  for.     On  presentation  of  the  note  to 
Lieutenant  W'addell,  he  Ininded  it  "  back  to  the  messenger  with  the 
simple  answer  tlnit  it  was  not  wluit  he  witnted,  that   it   had  better  be 
taken  back  with  his  compliments."' ' 

On  the   I.'Uh  of  February,  it  warrant  was  issiu'd  by  a  magistrate  for 
n.i,  iu.iii.i.  „.  the  arrest  of  one  of  the  men  chargetl  to  htive  been  enlisted; ' 
""'''"'"'"'  and  it  wiis  at  once  phtced  in  ilie  hiiiuls  of  the  superin...ndent 

of  ]U)lice  for  service.  This  otiicer  went  the  same  e\(Miing  on  board  the 
vessel  to  execute  his  wjtrrant.  <ind  on  the  next  <lay  made  the  following 
report : 

I  Inive  the  honoi'  to  inform  yon  that,  actinj;  on  yonr  instnictions,  1  proccethid  last 
eveinnj''  to  tin'  Confederate  war-steanu'r  Shenandoah,  with  a  warrant  for  the  arrest  of 
!V  man  known  as  t'liarh-y,  stated  to  have  ilie<;ally  enj^a^cd  himself  on  board  the  vessel. 
1  asked  for  (_'a|itain  Waddell,  but  was  informed  that  Ik;  was  m)t  on  noard.  I  tlien 
asked  for  tht^  otiicer  in  char^jfc,  saw  him,  and  obtained  jiermiHsion  to  go  on  Ijoard.  I 
told  tin'  utlii'cr  my  business,  and  reiinested  that  he  would  ;illow  me  to  see  the  men  on 
hoard,  in  order  that  I  might  tixecutti  my  warrant.  He  refused  to  allow  me.  He  then 
Hhuwi'd  me  the  ship's  articles  and  asked  me  to  point  uiit  the  mime  of  the  man.  which  I 


'  Hrit.  Case,  ji.  l.").^>. 

-  lirit,  Apj>.,  Counter  Case.  volv.  p.  KIH. 

■'  IJrit    App.,  v«d.  i.  p.  (iUi. 


'  Ihit.  Ajip.,  vol.  i,  p.  (i47. 
^  brit.  App.,  vol.  i,  p.  5:51) 


TIIK    SlIKNAXDOAIl. 


I2:i 


«,is  iiniiblt'  t<»  <l().  1  slniwcd  liiiri  my  \vjtiT;nit.  wliicli  lie  IodIccmI  ovci'.  aiul  I'lituriiin}^  it 
to  iiu'  liH  said,  tliat  in  ail  lifjlit.  Imt  you  .sliall  not  j^n  over  tin-  sliip.  }It'  told  iius  1  had 
lii'ttt^r  return  wheu  tlu^  captain  was  on  board;  but  as  lie  eould  not  say  at  what  hour 
he  would  itrobai)ly  return,  I  told  him  that  I  would  see  the  eai)taiu  the  followinjj;  day. 
This  niornin<?  I  went  a<{ain  to  the  Shenandoah,  and  aftei'  statinj'  my  business  was  al- 
lowed on  board.  1  t(dd  Captain  Waddell  that  I  was  intbrnuMl  he  had  ]iersonson  ))oar<l 
who  had  joined  liis  vessel  her<',  and  that,  inlbrinations  having  beiiu  sworn  to  that 
cliect,  I  had  a  warrant  with  me.  Ife  said,  1  idod;n»>  yon  my  word  of  Inmoi-  as  an  otlietn- 
iind  a  jjentleman  that  I  have  not  any  one  on  hoard,  nor  have  I  enj^ajied  any  one.  nor 
\sill  I  v.hile  I  am  here.  I  said  1  understood  that  the  persons  1  wanted  wen-  weariu;^ 
llie  unilbrm  of  th(>  ('(uifedeiate  State.'.  :ind  wer(Mvorkin<j  on  bf>ard.  This  he  distinctly 
denied.  ]lo  otVer(>d  to  show  me  the  ship's  articles  but  1  declined,  and  told  him  that  I 
liiid  seen  them  l.nst  eveninj^.  ]  then  asked  him  to  allow  me  to  j;<»  ovei'  the  shi[(,  and 
-('(•  it  the  men    1  wanted  «ere  on    board.     'J'his  he  refused  ti>  do.     I  s;iid  I  must  try  to 


•xecute  mv  warrant,  even  if  I  had    to  use  foi'c( 


ll( 


lid  1 


le  wo 


nld  use  force!  to  resist 


iiie,  and  that  if  he  was  overcome  he  would  throw  up  his  ship  to  the  tjovernment  heri; 
;uh1  <^o  home  ami  rei>()rt  the  matter  to  his  jfovcrnnu'iit.  lie  said  that  he  dai'c  not  allow 
nil!  to  .search  his  shij) :  "it  was  niort?  than  h!  connni'^siou  was  worth,  and  that  stich  a 
tiling  would   not   be  attenii)ted  by   the  (io\ernment  to  a  ship  of  war  of  another  coiin- 


iry. 


lie  said  "it  was  oniv  bv  conrtes'',  that    I  was  allowed  on    board. 


ind   that  h< 


(insidercd  "a  jireat  siijiht  had  been  juit  ni)on  him  by  sendin<j;  me  to  the  ship  with  a 
warrant.''  lie  said  he  fh(iii};hl  tluit  his  "word  should  ha\e  i)een  taken  in  jneference 
Id  that  of  men  who  had  |>iol»ably  deserted  from  tlit:  ship,  ;ind    had  l>een  jtiit  n)!  to  an- 


iv  him  bv   the   American    cmisul. 


Il( 


aid  that    if  I   took  <me  man.  1  minht  come 


it'terwards   and    tjike    tit'teen  or   twenty,   and  that  the   American   consul  would    ])er- 


ill 


lid  h 


i])s  lay  an  information  aj;ainst  him  as  beini;-  a  ••  biiccaiU'cr  or  ]»iiate 
lli(iiij>lit  that  he  had  been  very  liadly  ti'<'ated  hcie  by  the  ])olice  rcfiisiiij;-  to  a^sist  him 
ill  arrestinj;-  his  deserteis.  Heforc  leaving  I  ask-ed  him  again  if  he  refused  to  allow  me 
to  look  for  the  man  for  wlioin  I  had  a  wairanf  in  my  hand.  He  replied  yes.  that  he 
(lid  refuse,  and  that  he  would  liiilit  his  shin  rather  than  .allow  it.     I  then  lett.< 


not' 


On  the  i\i\y  of  its  rcccii)!  tlii.s  rojnut  wa.s  .siibinitttMl  hy  the  (iovoi 
to  the  oxecntivc  council.  In  ]misuiiiice  of  the  ii(lvi(;e  of  the  eoiineil, 
the  seerettii'y  of  the  coniinis.sioneis  <»f  tiade  and  eustom.s  juhhes.'^ed  a 
etter  to  Lieutenant  Wathh'Il,  apitealin.i;"  "to  him  to  ieconsi(U'r  his  de- 
tenninatioii,"  and  infonnin.u'  him  That  ])endiiig  stich  fnitlier  information 
the  i)erniission  to  i-epair  and  takt;  in  supplies  was  susj-.tMided.'  The  an- 
er  to  this  U'ttev  was  dis[iatched  by  Lieutenant  Wachh'll  at  (ivc  min- 


sw 

iites  before  ten  o'clock  on  the  evenin"'  of  the  Itth,'  and  in  it  he  says 

I  have  to  inform  his  excellency  the  governor  that  the  execution  ol'  the  warrant  was 
licit  refused,  as  no  such  person  as  tlu'  one  therein  sjiei-iticd  was  on  lioard:  Init  permis- 
sion to  seaich  this  shi|i  was  refused.  According  to  all  the  laws  of  nations,  the  deck  of 
:i  vessel  of  war  is  considered  to  rei>rcsent  the  majesty  of  tin-  country  whose  ting  she 
dies,  and  she  is  free  from  all  eseciitions.  exce|it  for  crimes  act nally  committed  on 
shore,  when  a  demand  must  be  maib'  for  the  delivery  of  such  iieison.  and  the  execu- 
tion of  tlu^  warrant  iterformed  by  the  jiolice  of  the  ship.  Our  sliiiiping  articles  have 
lii'cn  shown  to  the  Mi])erinteiident  ot"  jtolice.  all  str.'ingers  have  beet  sent  out  of  thfs 
stii]i,  and  two  commissioned  ollicers  were  ordeied  to  .search  if  any  such  had  )te(Mi  left 
on  ii(iar<l.  Thev  havi^  reported  to  me  that,  after  making  a  thorough  search,  they  can 
liiiil  no  |)er.son  on  lioard  except  those  \\\io  entered  this  port  as  a  part  of  her  comph'- 
iiifiit  <if  men.  I,  therefore,  as  commander  of  this  ship,  rciireseiiting  my  government 
ill  Miitish  waters,  ha\e  to  inform  his  excellency  tli.-it  there  are  no  persons  on  lioard 
lliiw  ship,  except  those  whose  names  are  on  my  ship]iing  iiiticles,  and  that  no  one  has 
licen  enlisted  in  the  service  of  the  Confederate  States  since  my  arrival  in  this  port, 
nor  have  1  in  any  way  violated  the  uciiliality  of  the  jiort.  And  I.  in  the  name  of  the 
•  ■overnnieiit  of  the  Confederate  Slates  of  America,  heieliy  enter  ni.\  solemn  protest 
■  igainst  any  olistrnction  which  nniy  cause  the  detention  of  this  ship  in  this  port.' 

At  about  10  o'chu'k  )>.  ni.  of  that  «hiy,  four  ineji  left  the  H'iMnah(h>iih 
ill  a  boat  pulled  by  two  watennen."    They  were  arrested,  iind  one  of 
them   was  identified  as  the  luiin    for  who.sc  arrest   the  warrant   was 
issued. 


'Hrit.  Ca.se,  ]).l."i(l. 
Mrit.  Case,)..  l.-)l. 

'Hrit.  App.,  Cminter  Case,  vol.  v.  p.  11(1. 
'  Mrit.  App.,  vol.  i,  p.  (ilT. 
■  Hrit.  Case,  p.  \:>2 ;   Mrit.  Counter  ( 'ase.  ji.  Dli. 


111 

1  I. 

1:1- 

llf:!^'? 


124 


AUGI  .MI:NT    of    TllK    INM'KI)    STA  IKS. 


On  the  same  1  Itli  tlay  of  I'V'bniaiy  tin'  Coiisiil  iorw aided  fo  the  (Jov 
eriior  two  otliei'  allidavits,  in  <»iie  of  wliicli,  tliat  ot  Her 
iiuuin  \Vi(;ke,  the  followiii"^'  statement  is  made: 


Kir'li.T     |.r 

r-CTKIIlliU     tilMii- 

I'll-  mull. .rill.-.. 


Tliiit  llic  i;ilic»iis  in  1  Inlisoii's  Iti  y  iiri' scivcd  Ityllif  iiiastci -;it-;iniis.  (  1  Itclifvc  naiiicil 
lici'dj  wliu    niM's   till'    niliinis    til '>iiarici-m:i''t<T  \icl<iiiu;,    and  tliis  lattrr  liriiij^.s  tln' 

rafidii-*  III  till'    galley  to    In-    cooked    liy  flie    rook,  know  ii  Ity  t  In-  iiai I'  "  (,'liarlfy  ;"' 

tliat  said  cook  Cliailcy  was  not  on  lioai'd  the  Shcnandoali  on  licr  aiiival  in  tln-liay;  In- 
Mcnt  on  tioard  sinc(!  iicr  arrival,  an(l  lie  told  nic  lie  would  Join  tlic  ship  as  cook:  that, 
he  <Iarcd  not  do  it  in  the  port,  Imt  that  he  would  do  it  when  procee<lin<:;  out  wardr 
that  1  also  saw  saiil  cook  take  rations  to  a  niiinher  of 


lien   Wlio  Wi 


•re  concealed  in  th 


ton 


sll. 


rlio  went  (Ml  hoard  since  lier   arrival  in    lloll^ol^>  l>av.     That  on  Satnrdav. 


1  Itli  l'\'hriiaiy.  |."'(i.">,  when  workint;  and  cleaninj;  tiie  Shenandoah,  three  Imys,  who 
4-aiiie  on  Itoard  the  ShiMiainloah  since  her  arrival  in  this  jiorl.  assisted  in  painting  he- 
tweeii  decks,  whereas  the  nnniliei'  ot'  men  so  concealed  (as  inentioned  ahove)  worked 
on  deck:  that  the  said  ineii  so  concealed,  in  niimlti-r  .-ihotit  ten,  reeeivi'd  rations 
cooked  in  the  .same  cookinir  apparatus  and  served  in  t he  same  way  as  the  rei^nlar 
crew  on  lioard:  they  eat  out  of  the  ship's  ]dates  in  the  t'oreeastle,  such  as  were  iiseil 
liy  tlie  ]M-isoners  while  on  tiic^  cruise;  that  they  sh-ep  on  hoard,  one  part  in  the  tore- 
<-astle.  the  other  part  l)etwetMi  de<d<s.  That  the  cook  Charley  and  another,  which  I 
conld  identify  if  seeing  him  ii^i>;aiii,  wore  soinetime.s  tin;  ship's  iiniforiu.-' 

Aml  ill  the  othei',  that  of  F.  C.  JJehtieke,  the  t'onowinj^-  appears: 

That  hefore  I  left  the  said  steam sliip  J  s;iw  ahont  ten  men  concealed  in  s;iid  Shcnan- 
doali, Some  of  said  men  told  me  they  came  on  hoard  to  join.  'J'har  several  of  the 
said  men  were  at  work  with  me  on  Saturday  l.-ist  with  the  knowled;;e  of  the,  oflicers  ; 
tliat  one  of  tlio  said  men  told  me  th  at  lie  conld  not  sijin  arti<les  in  this  port,  hiit  was 
jioiiiff  to  do  so  as  soon  as  lit,'  ;;ot  outside;  that  one  man  in  the  ;ialley,  who  came  on 
hoard  at  this  port,  wears  the  uniform  and  |>erforms  his  duty  in  the  said  nniform;  that 
said  man  in  the  };alley  lias  lieeii  weariii;;  the  nniform  for  aiioiit  eieht  or  ti'ii  days ; 
that  1  heard  said  man  in  the  ;;alley  calletl  Cliarlt-y  :  that  all  the  sai(l  men  who  <;iime 
on  hoard  since  we  arrived  in  .Melhonint!  lia\e  heeii  rationed  from  the  said  ship  .Shenan- 
«loah:  that  1  h.-ive  seen  the  mastei-at-arms  serve  out  their  provisions  to  X'ickinji-;  that 
alter  the  pro\isions  are  cooked  1  have  seen  (Quartermaster  X'ickinj;;  take  it  to  them 
from  the  galley  wliile  ( oncealed  in  the  forecastle.- 

All  the.se  eommunieatioiis  were,  on  the  I'lth  ot'  Fehrtiary.  submitted 
by  the  tiovernor  to  his  executive  eonneil.' 

From  this  it  api»ears  that  on  the  l.")th  of  February  the  (lovernor  and 
his  eonneil  knew  from  the  statement  of  tin  otlieer  in  eommaml  of  one  of 
Her  ^Majesty's  shijts  that  the  ship,  from  tlie  '•  paucity  of  her  crew,"  was 
not  in  condition  for  a  shi])  of  war;  that  one  witness,  who  Wiis  still  within 
the  reach  of  the  Judicial  process  of  the  Colony,  had  stated,  under  oath, 
that  there  were  iifteen  or  twenty  mvu  concealed  in  dilierent  parts  of  the 
shi])  who  came  on  board  to  join  :  that  an  otlicer  of  the  (ioveiinnent,  wiunii 
the  (lovernor  liiid  sent  on  boiird  to  e.xiimine  the  vessel.  re]>orled  that 
'•there  appearetl  to  be  a  mystery  in  the  fore  hold"  and  no  one  had  been 
admitted  there  ;  that  the  polit-e  ollieers  of  the  (lovcniment,  who  had 
been  directed  to  asi'ertain  the  facts,  hatl  reported  that  it  was  the  inten 
rion  of  the  commander  to  ship  forty  hands,  and  that  some  men  had  been 
enjia;;ed,  tind  turan;iements  had  been  made  tor  the  eno-ao-euient  of 
»»thers;  that  U[>on  an  order  beiii}*'  issiu'tl  upon  tin-  sworn  testimony  of  a 
c()mplainant  for  the  arrest  of  a  man  who  had  enlisteil  to  .serve  upon  this 
vessel,  the  otlicer  whosediity  it  was  to  make  the  ari'cst  reported  that  he 
hatl  been  prohibited  by  an  inferior  ollicer  of  the  ship  :ind  by  tin'  ol1i(!er 
ill  command,  each  actinj4'  separately,  from  .serving  the  process  on  board 
the  vessel,  tlie  principal  otlicer  in  command  (leclariuji'  u|)on  his  honor  as 
an  otlicer  and  a  jientleman  there  was  no  such  i>erson  on  boanl ;  that  upon 
;in  "ai)peal'"  to  the  coinmantler  for  a  reconsideration  of  his  decision  ho 
re})lie«l  that  no  such  person  was  on  board  at  the  time  the  request  for 
l)ermission  to  stave  the  process  was  made,  when  the  fal.sehood  of  his 
statement  Wiis  ju'oven  by  the  arrest  of  the  man,  who  left  the  vessel  at 


'  Am.  Ai)j».,  vol.  vi,  p,  iVM. 
-Am.  App..  vol.  vi.  )i.  (W7. 


'■'  Ilrit.  App..  vol.  i,  p.  ;VJ(>. 


rHK    SlIKNANHOAII. 


125 


(ir  about  tlu'  tiiiic  the  letter  Avas  IxMiig-  written,  ami  wliich  was  mort'. 
than  twonty-rour  luuiis  after  tlie  attempt  to  serve  tiie  i)roeess  was 
made;'  ami  that,  after  this  statement  of  the  eommamler,  the  Consul  of 
the  United  States  jjroduced  the  allidavits  of  the  other  persons,  who 
declared  positively  that  there  was  a  lar<;»'  number  of  nu'u  still  <M)neealed 
on  board  to  enlist  when  the  ship  j;'ot  out  of  jxat. 

Notwithstandinu'  all  this,  iKjwever,  upon   the  assuianee  of  the  eom 
iiiander,  made  atfer  after  the  arrest  of  the  four  jxMsons  who 
escaped, '"  that   there  were   no   persons  on    board   his  ship  inri.'v  w'.'ih't'h.' .m,,' 
\viios(^  names  wei'e  not  on    the  sliipiiiiiji'  articles,"  and  th;it  lMn''.l'ii "..,  i.",.L'..i 
IK)  one  had  enlisted  '-in   tlu^  service  of  tlu^   Confederate 
States  since  his  airival   in   i>ort,"  the  order  suspending:  i)ermission  to 
rcpiiir  and  take  on  siip]»Iies  wits  unconditionallv  rescinded,  and  the  ship 
released  from  the  surveillance  of  the  pi)lic(>w]io  had  been  jdaccd  aroiuid 
licr.     No  ju'omise  was  (•xa<'t<'(l  for  tiie  I'liture;   no  ollicer  was  plnccil  on 
hoard;    no  watch  maintained,  but  the  full  and  unti'amnu'lcd  hospitality 
of  the  i)ort  was  orjintcd   to  a  ship  whose  commander  had  not  scrupled 
to  "state  upon  his  honor"  that  wliich  the  (iovei'iior  knew  t<»  be  talse. 

After  tlu'  release  was  ordered,  and  iiorice  ther<M)f  ,'iiven  to  Lieuteiiiint 
Waddell,  his  exci'llency  caused  to  be  addressed  to  him  a  letter  as  fol- 
lows : 


1  iiiii  (lircctcil  liy  his  cxcclli'iicy  the  (iovtMiiiH'  fo  t'mtlic 


T  .•ickiKtwli'il^c  yoiii' cDiiiiiimii 

ciitioiis  of  tlic   l:>lli   iiiid   lltli   iiist.uil,   ill   wliii'li,  iilli'i;iiitr  tiiat    tiii^  vcssi 


1  iiiidiT  vour 

thr 


CiiliiMi^   ui     I  IK'     i>>iii    aiiii    iiiu    iiisiiUiif    111    Willi  II,    aiii-i;i(i;4    iiiai     i  iii*    \  f'^^^('I   iiiiiicL    \ 

cDiiiiiianil  had  hern  .sci/rd,  you  ask  whctiifr  tlw  si'i/.mc  he  known  to  his  cxcclirncy 
jldvi'inor,  and  it'  it  iium'Is  his  ai>i>roval. 

I  am  to  inlonii  yon,  in  irply.that  this  (iovt'iiuiicnt  has  not  diicctcd  oranthori/cd  th 
si'i/.nrc  of  the  Slicnan(h)aii 


I'l/.nrc  oi  Tilt'  i^ncnanooan. 

'fiu!  instrnctions  to  the  police  wc'c  to  sec  tliat  iioTW  of  Her  Majesty's  snhjects  in  tliis 
v'olony  rendered  any  aid  or  assistance  to,  or  peit'ornied  any  svorl<  in  iesi)eet  of,  yonr  ves- 
sel, iliii'inj;'  the  ]>eiiod  of  the.  siispeiision  of  t  he  |)ennission  which  was  «;ranted  to  you  to 
rciiair  and  take  in  siipjilies  pendinj;'  yonr  re[dy  to  my  letter  of  yesterday's  dat<!  in  re- 
gard to  a  Miitish  snhject  heiiijr  on  lioaid  yo'ir  vessel,  and  having;'  entered  the  seivict!  ot' 
tiu^  Confederate  States,  in  violation  ot  th(^  IJiitish  statute,  known  as  the  forei<;n-e,u- 
listment  act,  and  of  the  instructions  issut^d  by  the  (Jovernor  for  the  maintenance  of  the 
neutrality  l)y  Her  Majesty's  sulijeets.  fn  aihlition  to  e.\ideiict!  |»r(^vi()nsly  in  ]iossession 
Ml  liiis  ji;overnment,  it  has  heen  i'ei>orte(l  l»y  the  ]iolice  that  ahout  ten  o'clock  last  nijjht 
I'liur  men,  who  had  h(H'n  in  concealincnt  on  board  the  Shenandoah,  left  the  ship,  and 
were  arrested  immediately  after  so  leaving  by  tht^  water  police. 

It  appears  from   the      "   *  '        ""  "     "'     "^  "  '  ' 


w»    KitiKj    \>ailtlilt    Ml  rilll,\     II    llim  einf  I. 

lieferriiii;'  to  that  jairtion  of  your  coinniunication  of  the  14tli  instant  in  which  you 
inform  his  excellency  the  (Jovernor,  "  that  the  exeution  of  tlu^  warrant  was  not  rts- 
hiscd,  as  no  such  person  as  the  one  specilied  therein  was  fin  boaiil,"  I  am  in  a  jiositic" 
I"  state  that  one  of  the  tour  men  i»re\iously  alluded  to  is  ascertained  to  b<'  the  pcisi 
named  in  the  warrant. 


m 

sou 


1  am  also  to  oliserve,  that  while  at  the  moment  of  the  dispatch  of  yonr  letti'r  it  may 
he  (rue  that  these  men  were  not  on  lioaid  the  Shenandoah,  it  is  bcymid  qiicslion  that 
iliey  were  on  board  at  the  lime  it  was  indited,  .your  letter  havinj;  been  dispatched  at 
live  minutes  before  ten  o'clock. 


'  Spotich  of  AtcCuUouk  in  the  colonial  assembly,  Am.  App.,  vol.  vi,  (ititi 


A: . .. 


;/■>■::■. 


■in 

I  lf\ 


t';; 


« 


-r^J 


r 


12(1 


AK(il MKXr    (»F     TIIK    INriKl)    SIAIKS. 


Ilritisli  Milijfcts  to  iiiil   iiiiil  ii.s.-ti.st  yi)U  in  clt'cctin^  tin'  necessary  icpaiis,  and  taking 
in  Hn|)|iiii'M. 

I  am  to  a(l<l,  it  is  I'Xiicittcd  i  liat  yon  will  fxcrcisf  i-n  cry  tliN|>atcli,  so  as  to  iiisnrt'.  yuur 
(Iciiai'tui'c  by  the  day  nann'd   in  your  lirst  Idler  of  yesterday,  vi/.,  Snnday  next..  ' 

To  tlii.s  tlic  liciitiMiiiiit  t'omniamliiijn'  replied  on    (lie  KUli,  ami   in  so 
doing"  took  occasion  to  stiy  : 

In  eonelnsion   sir,  allow  nie  to  inlorni  yon  tliat  I  iMinside  ■  the  loi,-'  ol"  yonr  letlcr  it 
niarUalily  disresjieetinl  and  insnltin;;'  to  the  (iovernnii'nl  I  have  the  homtr  to  re|H'eseni , 
and  that  1  shall  take  an  early  opiioiinnity  of  forwarding'  it  to  the    IMehnioinl  (iovein 
nient." 

But  li(^  acccptc«l  the  piiviU'f;;('.s  granted.  Tlio  di.sicspoct  and  insult 
cousi.stcd,  as  the  Arbitiatois  will  readily  perceive,  in  intimating  some 
what  distinctly  to  the  couimiintler,  that  the  (lovernor  accepted  st.ite 
ments  made  "  upon  honor,"  which  he  knew  to  be  talse  in  spirit,  if  not 
ill  letter. 

On  the  KJtli  of  February  an  exa»nimition  was  hiid  of  the  parties  ai- 
rested  while  leaving  the  sliip,  before  one  of  Jler  ^lajesty's  justices  of 
the  peace  for  the  Colony.  The  witnesses,  whose  allidavits  had  been  taken 
and  presented  to  the  (lovernor,  were  examined  orjilly  in  court.  Every 
fact  stilted  in  the  atlHdavits  was  i)roven,  and  the  accu.se«l  were  identiiied 
as  the  i)arties  who  were  on  the  ship.  One  of  them  (Charley)  wiis  not 
only  on  the  ship,  but  in  the  uniform  of  the  ship  ju'rlbrming  the  dutic^s 
for  which  he  had  enlisted,  or  tit  least  had  tigreed  to  enlist.  Upon  this 
testimony  the  persons  arrested  were  all,  on  tiie  I7th,  committed  for  trial, 
and  two  were  sub.se(|uently  convicted.'  J>ut  one  Avas  alterwtird  (lis 
chargeil  by  the  Attoriiey-Ceneral  on  account  of  his  youth,  andiinotlicr 
for  wiint  of  proof  as  to  his  nativity.  The  next  day  the  ollicers  of  tlic 
ves.sel  ii])i»ealed  to  the  i)ublic  through  the  newspa|)ers.  They  theic 
stated,  "  u)»ou  their  honor,"'  to  protect  thein.selves,  and  secure  the  escafx' 
and  incretised  eniciency  of  their  ship,  wluit  they  dared  not  state,  "  under 
oatli,"  to  i)rotect  the  igisorant  men  v.liom  they  allowed  to  siilfer  for  their 
own  crime.' 

Immediiitely  after  the  onler  })ermitting  the  repairs  and  supi)lies  tolu' 
contiinied  was  made  known,  the  Consul  addressed  another  communicii- 
tion  to  the  (iovernor,  which  he  dosed  by  saying  :  '•  1  trust,  therefoiv. 
that  upon  further  reflection,  your  excelh'iicy  will  reconsider  your  decision 
regarding  this  vessel,  agitinst  which  I  have  felt  constrained  to  prote.st 
so  earnestly."  ' 

This  communication  must  hiive  come  into  the  hands  of  the  (lovernor 
not  long  after  he  had  received  the  somewhat  pointed  letter  of  the  com 
mander  of  the  ves.sel ;  but  neither  the  representations  of  the  Consul,  tlic 
result  of  the  examintition  of  tin?  men  who  had  been  persuaded  by  tho 
real  offenders  to  become  criminals,  the  insoleiuje  of  the  contmander  of 
the  vessel,  nor  anything  else,  could  induce  the  authorities  composing 
ller  Majesty's  (rovernment  at  this  Colony  even  to  put  the  vessel  under 
further  surveillance. 

On  the  IGth  of  February,  the  consul  pUutd  in  the  hands  of  the  Attor 
iiey-General  ii  further  atlidavit  of  Michael  Cashmore,  a  cili 
piite'i  zen  of  Melbourne,  stating  that  he  had,  on  the  2d  of  Febru- 
ary, seen  on  the  Shenandoah  a  man  iu  the  uniform  of  tlif 
''  ship,  who  was  sitting  with  the  other  sailors  eating  soup,"  and  whotoM 
him  he  had  joined  the  ship  that  morning  ;  and  also  an  attidavit  from 
the  captain  of  a  vessel  iu  the  port  iu  which  it  was  stated  that  foutteeii 


''Kurlli.-r 

Ik I'cdilti 

rccriiitifif'jil 


'  Brit.  ipp..  Counter  Ca.se,  vol.  v.  p. 

-Ibid.,  p.  ii:{. 

•'Brit.  App.,  vol.  i,  p.  .V.Xi. 


11-2. 


<  Ibid.,  p.  54G. 
•'■Ibid.,  p.  614. 


rin:  smknanmoaii. 


127 


Inlii;il    inillinritif 


(liiys  Ix'lorr  lu*  iiii<l  yoiic  on  Uoiird  tliV  sIiipiunliiHiiiircd  oltlii' coiikiiiiiiul- 
iii^j  olTiciT  if  lie  liiid  any  «'lii<MU)nu't('rs  lor  sale  :  that  lie  was  diicctcd  to 
;i  person  in  the  nniloiin  of  an  olliccr;  that  lie  liad  made  a  st'h'ction  from 
livt'or  six  chrononu'tois  hancU'd  him  l»\  tlic  olliccr  and  l)oii<>ht  and  paid 
tor  one  whieli  he  describe*!.'  Th«'se  airnhivits  wei*'  |»roeui'ed  an«l  ph»('»'d 
in  the  Iiands  ol'  the  Iia\v-(  )Hieei'  of  tiie  Crown  Just  after  the  vessel  had 
li<>en  hiuiK'hed  from  tiie  slip. 

On  the  Kith  of  Febrnary,  Lientenant  Wadtlell  inf«»rmed  the  "•overnoi', 
that  e\ery  dispatch  was  beinj;-  nsed  by  him  t(>  j;et  the  Siu'nandoah  to 
sea  at  the  earliest  i>ossible  moment;-  and  (Mi  the  17th,  it  was  reported 
l>y  the  tideinspeetor  that  she  Inul  taken  on  coals  dnrinj^;  the  nifjht,  and 
was  reshippiny;  stores  from  ji  lij^hter.'  It  mnst  ha\e  been  apparent  to 
ill!  she  woidd  renniin  in  port  but  a  shovt  time  lonyei'. 

At .'»  o'clock  in  the  afternoon  of  the  17th,  the  Consul  rt'ceivetl  othei' 
information  to  theell'ect  that  men  were  bein^' enlisted  to  in- 
crease the  crew.  lie  went  at  once  with  his  new  witness, 
Andrew  Forbes,  to  the  Crown  Solicitor,  by  whom  he  was 
siMit  to  some  of  the  -'plenty  of  magistrates;"  then  he  went  to  the  ollice 
of  the  chief  coinmission«'r  of  police,  who  was  not  in  :  then  to  the  Attor- 
iiey-(ieneral,  who  wanted  an  atlidavit  taken:  then  to  the  ollice  of  the 
detective  police,  but  the  chief  of  that  ollice  must  have  a  warrant  before 
he  could  act,  ami  advised  him  to  no  to  the  police  justice  for  that  pur- 
pose ;  then  to  the  i)olice  Justice,  who  could  m>t  take  the  lu'sponsibility  of 
jirantinya  warrant  u^ton  theevidenceof  one  manalone,but  advised  him  to 
U'oto  a  mafi'istrate  at  Williamstown,  about  four  miles  distant,  who,  jier- 
haps,  mi;;ht  have  corntborative  testimony.  It  was,  by  this  time,  half- 
past  seven  o'clock  in  the  evenin.i;'.  At  this  hour  the  Consul  took  tln^ 
allidavit  of  the  witness,  which  he  sent  by  piivate  hand  to  the  attorney- 
jicneral,  and  started  himself  for  NVilliamstown.  The  witness,  however, 
l)i'iii<;-  afraid  of  personal  harm,  I'cfuseil  to  .u'o  with  him,  and  the  allidavit 
(lid  not  reach  the  attorney general  on  account  of  the  lateness  of  the 
hour.'  The  Consul  did,  however,  send  a  messenj;'er  to  the  water-i)oli(;e, 
at  Williamstown,  who  reported  to  them  the  sliippini;'  of  the  men,  but 
they  said  they  were  jtowerless  to  interfere  witln^ut  directions  from  the 
head  authorities  at  Melbourne.'  In  view  of  this  state  of  facts  tlu^ 
Ciiited  States  believe  the  Arbitrators  will  not  auree  with  Her 
Miijesty's  (lovernnuMit  when  it  says,  is  it  docs  in  the  Counter  Case,  on 
paii'e  07,  that  the  Consul  was  "certainly  more  Justly  eharyeable  with  a 
want  of  due  dili,!»ence  than  tl.osi^"  to  v\hom  he  ai)i)lied  for  assistance. 

The  United  States  in  this  coi'.nection  also  ask  tlu'i  attention  of  the 
Arbitrators  to  the  following  stJiiement  in  the  Counter  Case,  presented  by 
llcr  Majesty,  on  page  OS  : 

^iicli.  iis  t'lir  as  is  known  to  lirr  Jliijcsty's  (ioMO'iuat  ;;•  is  all  tlic  iiit'i)i'iii:ition  wliicli 
till'  iuitliorititis  of  MclbDuiMKi  were  aWlo  to  olttaiii  »■-  ■<>  M\o  alic'>;»'(l  sliipnuMit  of  men 
IVoni  tli(!  Colony  on  board  the  Slienaniloali.  It  was  tii.  n.slied.  (or  llie  most  l>art,  to  the 
poMco  by  tiie  boatmen  wlio  liad  lieeii  employed  in  pnttin^j  tiie  men  on  boiwd,  on  the 
iniilerstanding  that  they  should  not  tiiemselves  sutler  on  aeeonnt  of  what  had  been 

illllle. 

But  on  the  Kith,  more  than  twenty-four  hours  before  she  left  port, 
it  was  demonstrated  there  was  evidence  enough  to  convict  four  lueu 
who  had  enlisted  before  the  vessel  had  sailed,  and  before  she  went  to 
the  docks.  That  information  was  not  obtained  from  boatmen.  Every- 
tliing  transpired  under  the  eyes  of  the  police  themselves,  and  the  cou.- 
viction  followed  from  their  testimony ,  connected  with  that  which  had 

'  Brit.  App.,  vol.  i.  p.  Gl,''.. 
Ibid.,  p.  (521. 
Ibid,  p.  :<V>. 


*  Lord  Blauchard,  Brit.  App.,  vol.  i,  p.  617. 
■^Atlidavit  of  l?obl)ins,  Am.  App.,  Counter  Case,  p.  IIT). 


i 


rjs 


AKMilMKNT    or    TIIK    I'MTKK    SI'ATHS. 


been  fiiniislicd  W.v  tlic  ('oiisiil.  It  'was  wliat  tliry  knew  Ix'l'on'  llui  vcss,', 
I«'ll  port  wliidi  should  liiivc  comiH'lIcd  tliciii  to  act,  not  what  came  to 
tluMii  at'ttT.  The  I'liiliMl  States  liavc  never  asked  lor  the  eoiivictioii  oi 
th«'  boatmen.  What  they  wanted  was  the  <U'tention  of  the  \essel,  or, 
at  h'ast,  the  adttption  of  such  nieasim's  as  wonUl  picNcnt  the  anjunieur 
ation  of  her  warbk*'  force. 

T\m  !Slieiian(hiah  left  her  anchorauc  early  on  the  nioiniii;^  of  the  iMh 

iir...   ,,,,,nt    mid    i>i()ceeded   to  sea    iinniolestt d.      The   ";;iins  were  all 

":::;':.:'' Zu^-^^ri  '<>iided  lielore  the  vessel  w<nt  ontside  of  the  Heads."'     'I'lic 

'"•  chief  coinniissioner  of  police  says,  on  the  LMlth  October,  I.S71. 

that  "  lut  visitors  were  allowed  on  Itoard  the  SheiiaiMloah  nndei'  any  jtic 
tense  lor  thice  (hiys  belbre  she  sailed,  and,  in  the  absence  of  any  (tf  Her 
iM  a  jest  >'s  ships  in  onr  waters  at  the  time,  the  efforts  of  the  water-polici 


were  necessarilv  of  little  a\ail. 


Tl 


le  same  c.flicer  savs, 


in  th 


i-  same  ri 


jiort  :  "JIad  the  ISlienandoah  be(  ii  alloat  in  t he  bay  at  the  tiin(N  1  am 
con\inced  thiit  any  attem|)ts  on  tlu'  jiart  of  llie  jiolice  to  search  hei',  oi 
to  execute  wariants  foj-  the  apprehension  of  jiersons  illejially  enlisted, 
would  have  been  violently  resisted.''  Jf  this  was  nndeistood  at  the  time, 
the  I'nited  KSiat«'S  are  at  a  loss  to  know  why  it  was  she  was  permitted 
to  {ict  alloat  nntil  her  oflicers  had  allowed  their  vessel  to  c(»nie  nndci 
the  sniveillance  of  the  (Joverninent,  or  nntil  some  means  had  been  de- 
vised by  which  a  fresh  violation  of  the  nentrality  of  the  waters  mijulit 
be  prevented.  Her  Majest_\"s  shij)  l>ombay  was  in  ])ort  when  the  Hlieii 
andoah  arrived,  and  the  United  States  can  hartlly  believe  she  liad  heeii 
permitted  to  leave  the  harbor  entirely  nnproteeted  while  so  tronblesoiiic 
a  visitor  remained.  At  so  imi)()rtant  a  station  there  nuist  have  been 
some  vessel  of  Her  INbiJest.N's  powerful  Navy  th"*^  (jonhl  be  called  upon 


by  the  ( !o\  ernor  of  the  Colony  for  assistance  ii' 
At  anv  rate  the  Sheiuin(b)ah  could  have  been 


it  became  necessarv, 
u[»on  the  dock  until 


a  ship  of  war  was  found  to  watch  hei'  if  the  autnorities  had  been  so  dis 
posed. 

As  soon  as  the  Shenandoah  jjot  outside  of  the  neutral  wains  an  addi 
tion  was  found  to  the  complement  of  her  men.  They  ma;)  not  have 
been  added  to  her  crew  in  form,  by  actual  enlistment,  but  they  were 
recruited  ;  and  with  the  men  on  board  the  enlistment  was  easily  accoiii 
plished.  Jn  this  way  forty-two  men  were  added  to  the  crew,  as  will 
ap[»ear  by  the  atbdavit  of  Temple,  in  w  hich  names  are  fjiven.''  Amoii;^ 
these  mimes  the  Arbitrators  will  lind,  as  masterat  arms,  "  Charles 
M(;Laren."  His  name  also  ajipears  in  the  report  of  the  chief  detective 
at  San«bid<;e,  made  on  theb'Jth  of  February,  where  it  is  said  :  "A  water- 
nnin  named  McLaien,  now  at  Sandridyc,  is  either  already  enlisted  or 
about  lo  be  so."''  It  also  is  found  in  the  report  of  the  same  detective 
on  the  21st,  as  ^TcLaren,  "who  stated  openly  a  short  time  bacdc  to  ii 

atcrman  named  Sawdy  and  others,  that  he  was  about  to  ship  on  tli 


Shenandoah. 


They  will  also  lind  the  namesof  Thomas  FiVans,  lioboit 


Dunninfi',  and  William  Creen,  which  also  ai)pear  in  the  aflichivit  ol 
J'orbes,''  the  witness  who  went  with  the  consul  on  the  17th  wlien  he  en 
iU'avored  to  obtain  some  action  by  the  ofli(!ers. 

As  soon  as  the  vessel  had  escai>ed,  it  was  easy  for  the  authorities  to 
satisfy  themselves  that  lar;;e  additions  had  been  made  to  the  ci-ew. 

The  bSth,  the  day  on  which  she.  sailed,  was  Satunhiy.  The  i)apers 
published  on  ^loinlay  morinn<«'  all  make  nuMition>of  the  increase  of  her 
crew.     The  Jlerald  has  the  following;*;  notice: 

1)1  if.  App.  CoMiitei'  Case,  vol.  v,  p.  \2il      ■»  I5ri(.  Apit.  Oouuter  Case,  vol.  v,  p.  10^'. 


Ml. id.,  p.  lil. 

^  liiit.  App.,  vol.  i,  pp.  7(tl.  TO-J 


U.id.,  p.  117, 
'  I5iit.  App.,  vol.  i,  p.  fiU). 


ors  to  jrct  lii 


THE    SHKNANIJOAH. 


129 


Tlie  CoiifiMlfintti  cniiNfr  Slit'iiaiiiloiili  Iflt  irohsKn's  IJjiy  at  alxnit  ti  a.  iii.  on  Satiinlay, 
and  \vu«  «•'»'"  <lniin<;  tin-  afternoon  oiitsidf  tlio  Ilt-ads  l»y  tlu>  Hcdiooncrw  Sir  Isaac  Ncw- 
tiin  and  Zcpliyr.  She  xtt'anwd  n|)  to  tlio  fornn-r  and  lioistt'tl  an  KukHhIi  tMiMijrn,  wliii-li 
on  lifinn  aiiMWi  red  witli  a  liUc  tla^  s'lf  stood  otV  a^^ain  ;  when  tlio  Zcjdiyr  saw  Iut  at 
a  later  lionr  of  the  day  slie  was  liove  to  otf  C-'ape  Sclianek.  Se\t'ral  minors  are  atloat 
that  tin;  ShtMiandoah  slii|>)>4-tl  or  received  on  lioard  soniewhere  alxnit  eighty  men  jnst 
livior  to  leavinj;.  We  liavo  since  l>een  informed  that  siie  took  away  a  laijje  nnnilier, 
lint  not  iM|nul  to  tliiit  ahove  stated.' 
Ill  the  Arjiiis  it  was  said : 

It  is  not  to  I>i)  (1«Miied,  )iow«!vor,  tinit  dnrin<;  I'riday  ni)>lit  a  lar^ti*  nnmlier  of  n^eii 
fiiiMid  tlioir  way  on  board  tlie  Hhenandoali,  and  did  not  retniii  on  sliore  attain. - 

Aiiotlier  paper  said : 

There  is  no  donht  tlnit  she  Inis  tak(«n  away  with  her  several  men  from  this  Colony  ; 
report  says  ei^lity,  bnt  that  is  jnoliahly  an  exnfjfferation.  Tluj  nei^leet  of  the  Attor- 
ney-Oencral  in  not  replying  to  Captain  Waddell's  (inestion  as  to  the  extent  of  the  neu- 
tral limit,  has  apparently  absolved  that  eonnnander  from  resiionsibility  so  far  as  car- 
rying; on  hostile  operations  ontside  Fort  I'hilip  Heads  is  oncerned,  for,  aeeordinj;  to 
(lur  ship])inK  report,  the  Shenandoah  steamed  nji  to  the  s<'hooin'r  Sir  Isaac  Newton,  evi- 
(kiitly  with  the  intention  of  uverhaiilin};  her  had  she  happened  to  be  a  Yankee  vessel.  ' 

And  the  Age  said : 

The  Sln'nandoah  left  Hobson's  Hay  at  tl  o'clock  on  Satnrday  morninj;.  It  is  cur- 
rently reported  that  she  shipped  some  ei>;hty  men  .just  jirior  to  leavin<;.  At  a  late  honr 
mi  Saturday  she  was  hove  to  oil'  Cai»e  Schanek.  The  p(dice  on  Saturday  received  the 
tollowiuK  infonnation  relative  to  an  attempt  nmde  to  enlist  men  for  the  confederate 
service  on  board  the  eonfedelate  steamer  Shenandoah.  About  half  past  4  o'clock  on 
Siitnrday  afternoon,  a  man  who  {jave  liis  nanui  and  address  as  (ieory,e  Kennedy,  I'J') 
Flinders  Lane,  east,  called  at  the  police  ottice  in  K'nssell  street,  and  stated  that,  having 
-ct^n  an  advertisement  in  the  Aryus,  he  called  on  the  advertiser,  Powell,  with  whom 
was  anotln-r  man  whose  name  litMlid  not  know.  He  renuiined  in  their  company  for 
several  hours,  during  which  time  licy  sni>plied  him  with  drink,  and  endeavored  by 
every  kind  of  persuasion  to  iniliice  him  to  join  the  confederate  service  on  board  the 
Shenandoah,  for  which  ]inr[)oso  they  also  conducti.'d  him  to  the  wharf,  and  desisted 
from  their  efforts  only  when  he  openly  stated  his  intention  of  repoitin;;  the  nnitter  to 
th(!  authorities.  Kennedy  further  statol  that  when  the  men  were  usinj;  their  endeav- 
ors to  <ret  him  to  Join  the  SluMumdoali  there  were  several  other  persons  jiresent  who 
iuee]ited  their  otftjrs,  and  whom  he  now  believes  to  be  on  board  that  vessel.* 

Oil  the  Ulst,  the  senior  eoiistable  of  the  water-iwlice  reported  "  that 
iit  about  1)  o'ch)ek  j).  ni.  on  the  17th  instant,  [the  evening  before  she 
sailed,]  when  on  duty  at  the  railway  pier,  Satidridge ,  he  observed 
three  watermen's  boats  leave  that  pier,  and  pull  toward  the  Confederate 
States  steamer  Shenandoah,  each  boateontsnning  about  six  passengers; 
observed  likewise  a  person  who  the  eonsttiblo  believed  to  be  an  otlicer 
of  the  ship  in  ])lain  clothes,  superintending  the  embarkation  of  the 
pa.ssengers ;  saw  the  same  boats  returning  in  about  halt  sin  hour  after- 
ward, midway  between  the  Shenandoah  and  the  pier,  with  only  one  man 
in  each  of  them  ;  on  returning  to  the  picT  at  about  midnight,  was  informed 
by  the  constable  on  duty  there  (Knox)  that  during  the  al)scnce  of  the 
jiolice  boat,  three  or  four  boats  had  left  the  pier  for  the  Shenandoah, 
containing  in  .all  about  twenty  passengers.  Have  made  impiiries  rela- 
tive to  the  i)ersons  conveyed  on  board,  and  find  that  the  parties  named 
in  tlie  margin  were  seen  on  board  at  one  o'clock  in  the  morning  of  the 
18th  instant."  = 

(ieorge  W.  Kobbins  also  stated  to  the  police  that  "he  passed  across 
tlu'  bay  on  Friday  night  last,  with  a  mes.sage  from  the  American  Consul 
to  the  police,  to  the  effect  tliat  the  Shenandoah  was  shipping  men  on 
board.  On  his  way  he  saw  a  boat  pulled  by  Jack  liiley  and  a  man 
named  Muir;  they  had  about  twelve  men  in  a  boat.    On  his  return, 


1 
i.   i\ 


I 


'  Am.  App.,  vol.  vi,  p.  683. 
Ibid.,  p.  6H4. 
Ibid. 

9c 


♦  Ibid.,  p.  685. 
Brit.  App.   Counter  Case,  vol.  v,  p.  lll>. 


130 


ARGl'MKNT    OF    THE    L'XirED    .STATKS. 


■  '] 

:,  •!    jit 

1 

tm 

tkL 

:it  >1i-U)uuri»e, 


CoiititiK     tlu'ii 


Riley  aiul  JMiiir  bein*^  alone,  pulled  up  from  the  Shenandoah,  and  hailed 
Uobbins.  Kobbins  did  not  reply.'"'  Tlio  report  of  this  last  statement 
was  made  on  the  22d. 

But  the  United  States  ask  the  attention  of  the  Tribunal  to  another 
fact  conneeted  with  the  troatuient  of  the  Shenandoah  at  Melbourne. 

She  was  a  "  full-rif>*ifed  ship  of  superior  build,  and  with  {jood  winds 
she  was  a  fast  sailer,  but  with  lij^ht  bree/es  she  was  only  ordinary.  Slu' 
also  had  steam-power  auxiliary,  with  a  propeller  that  eonld  be  used  at 
])leasure,  and  which,  when  not  in  use,  eonld  be  hoisted  uj),  so  as  not  to 
interfere  with  her  sailing.  During'  the  days  before  named,  she  sailed 
more  than  two  thousand  miles,  and  only  used  her  steam-power  twice, 
once  in  .i?oi"j;'  through  the  straits  and  aji'ain  in  clearing  Behring's 
Island.'*^  She  only  used  steam-i)ower  two  days  during  the  thirty  pre- 
ceding her  arrival  at  .Melbourne.'  Steam  was  rarely  used  except  in 
making  captures. 

Her  rei)airs  were  only  necessary  to  make  iier  steiini-|)Ower  elfective. 
The  board  ol'  inspe(;tors  ai>pointedby  the  Governor  to  ascer- 
tain what  repairs  were  nee<led,  ri'ported  that  she  was  not "  in 
a  fit  state  to  proceed  to  sea  as  a  stea>nship;"  and  all  the  i)articnlar  re 
pairs  si)eci(ied  by  them,  and  by  the  firm  employed  by  Cai)tain  \Vaddeii, 
related  to  her  steam-power  alone.  Not  a  word  Is  said  of  any  repairs  to 
her  hull,  and  it  does  not  ap|)ear  that  any  were  made  except  calking. 

As  has  been  seen,  when  she  arrived  she  had  on  board  four  hundred 
tons  of  coal.'  This  fact  was  made  known  to  (rovernor  Dar- 
ling by  the  United  States  Consul  on  the  17th  of  February.' 
But  he  must  have  been  made  acquainted  with  the  same  fact  from  other 
sources.    Captain  AVaddell  asked  leave  to  land  his  "  surplus  stores.'" 

On  the  7th  the  tide  inspector  reported  tiuit  she  "on  Monday  was  light- 
ening,  preparatory  to  being  taken  on  the  slip,  by  <lischarging  stores  and 
coals  into  the  lighters  near  the  breakwater."'  On  the  same  day  the 
harbor-master  reporte<l  "  the  crew  and  a  party  of  men  from  the  shore 
are  now  employed  in  dis(!iiarging  coals  and  stores  into  lighters.  *  *  1 
have  been  given  to  un«lerstand,  if  she  be  sulliciently  lightened,  ami 
weather  i)ermitting,  slu^  will  be  taken  into  the  slip  to-morrow  after- 
noon.'"" Again,  on  the  Sth,  the  tide  inspector  reported,  "The  Shenandoali 
continued  to  discharge  stores  into  lighters  yesterday,  but  little  progress 
was  made,  owing  to  the  boistenuis  state  of  the  weather."''  And  on  llie 
l>th,  the  harbor-master  reported  '"that  the  jiersons  in  charge  of  thf 
])atent  slip,  on  i)lacing  the  Shenamloah  on  the  cradle  yesterday,  foiuul 
siie  was  drawing  too  much  water  to  admit  of  the  vessel  being  takeri  uji 
with  safety.  The  crew  and  men  from  the  sliore  are  lightening  Jier  al)at't. 
preparatory  to  another  tiial  to  get  her  up  to-day  at  high  watc)."'"  It 
will  be  Ixniie  in  mind  that  slie  wasa  vessel  of  war  without  cargo,  except 
eoal.  She  was  lightened,  iherefoie,  by  taking  out  coals  and  siiitniii^ 
oidy. 

On  the  17th  the  Consul  ju-otested  to  the  CoveriKU'  against  her  belli;; 
permitted  to  take  in  coals,  adding,  '•  1  carim>t  believe  Your  lOxcelleiiey  i- 
awari' of  the  large  anu>unt(d' coal  now  being  furnisiied  said  xesscl  ;""  hut 
the  (iovernor  "ac«|nainte<r'  him  in  leply,  on  the  same  day,  that  a  sliip 
of  war  of  either  belligerent  is,  under  ller  Majesty's  instructions,  allowed 


'  llrit.  App.  (^oiiiitiT  CiiHe,  vol.  v,  p.  I'iO. 

-'  Allitliivit  of  Ciiptani  Nye,  Am.  App.,  vo!.  vii.  p.  It-i. 

•'  Alliiliivit  (if  W.  (i.  .Nichiils.  Am.  .Vjip.,  vol.  vii,  [t.  Ill2. 

^  \u\   App.,  viil.  vi.  1).  i'W. 

'•  Mrit.  Ap)i..  vol,  i,  p,  014. 

'■  Ibid.,  p.  5'4(l. 


'  lltid.,  p.  .WJ. 

"  Mrit.  Aiiji..  vol.  i.  p.  ■ 

'  ll.i.l. 
"  ll.i.l. 
"  lbi«l.,  p.    til."). 


THE    SHENANDOAH. 


131 


hyitlif: 


to  take  iu  cojil  sulticieiit  to  carry  sncli  vessel  to  the  nearest'  port  of  lier 
own  country  or  to  some  nearer  destination."' ' 

Thereupon,  wheu  tiie  vessel  was  launched  fiuiu  the  slip,  she  Mas 
hauled  alonjiside  the  John  Frazer,  and  took  in  three  hundred  tons  of 
coal,  which,  with  the  four  hundred  she  already  had  on  board,  gave  an 
ample  supply  for  the  contemplated  cruise.-  It  is  now  said  by  the  col- 
lector of  customs  that  "two  hundred  and  fifty  tons  of  coals  were  trans- 
shipped to  her  from  the  John  Frazer."^  It  matters  but  little  which  of 
tiiese  amounts  was  actually  taken,  for,  after  a  cruise  of  nine  months  and 
lu'r  destructive  Avork  amony  tiie  whalinj;-  licet  in  tlie  Arctic  seas,  she 
arrived,  on  the  Gtli  of  Xoveniber,  at  Liveriiool,  with  one  hundred  ■.»«! 
tliirt}'  tons  remaining;  on  board,  ac(!ordinf»'  to  the  reimrt  of  Captain 
Paynter,  of  Her  Majesty's  ship  J)i)Meg"al,  to  the  Comptroder  (leneial  of 
tlic  Coast-j^uard.* 

Notwithstanding  the  protest  of  the  Consul,  no  account  seems  to  have 
been  requu-ed  of  the  actual  amount  ou  haiul,  and  from  all  that  ai>pears 
an  unlimited  i)erniit  was  granted. 

She  was  also  permitted  to  take  on  board  sui)plies  for  her  cruise.  The 
extent  of  these  supplies  does  not  appear. 

Ou  the  30th  of  January  the  Commissioner  of  Trade  and  Customs 
informed  LicMtcnant  Waddell  that  "it  vvill  be  necessary  that  a  list  of 
the  supplies  required  for  the  immediate  use  of  your  vessel  #  *  * 
should  be  sent  in  for  the  guidance  of  J  lis  Excellency."^ 

On  the  same  day  Lieutenant  AVaddell  replied,  "  I  have  to  state  the 
iniinediate  supplies  re(inired  for  the  oilicers  and  crew  under  my  com- 
mand consist  of  fresii  meat,  vegetables,  and  bread  daily ;  and  that  the 
sea  supplier  recpiired  will  be  brandy,  rum,  chami)agne,  i)ort,  sherry, 
beer,  porter,  nu)lasses,  lime-juice,  and  some  light  materials  for  summer 
vear  for  my  men,  iS:c."'' 

It  will  be  noticed  that  the  (pnuitities  required  are  not  stated ;  but  on 
the  next  day  the  commander  \vas  notitie<l  that  "jtermission  is  conceded 
for  you  to  ship  on  board  the  Shemuidoah,  in  such  ((uantities  as  may  be 
reasonably  necessary,  the  provision  and  sui>[)lies  enumerated  in  ytuir 
oommunication  under  reply."' 

If  any  furthej-  list  was  furnished,  Her  Majesty's  Government  has  not 
seen  fit  to  present  it  tor  the  consideration  of  the  Arbitrators. 

Tin'  permit  for  general  supplies  ai>pears,  therefore,  to  have  been  as 
unlimited  as  that  for  coal. 

Without  these  additions  to  her  steam-power,  crew,  and  sni)plies,  she 
Dover  could  have  accomplished  the  objects  of  her  cruise.  Although  "a 
fast  sailer  in  a  strong  wind,  with  a  ligiit  bree/.e,  she  could  iu)t  have  out- 
sailed the  averageof  the  whalers."''  It  is  the  lirnt  opinion  of  Captains 
Nye.  Hathaway,  \\  inslow,  Wood,  and  J»ai  er  that  if  she  had  not  used 
liiT  steam-power,  she  could  never  have  •  ii)tured  the  larger  jiortion  of 
the  wlialing  lleet.  She  waited  for  a  caiai  before  attacking  the  whaling 
vessels,  in  order  to  prevent  their  escaping  into  the  ice,  and  then  imido 
chase  under  steam.'  And  she  could  not  have  been  safely  handh'd  in  the 
Arctic  seas  if  sh<"!  had  not  olitained  the  additions  to  her  crew  at  Mel- 
homne.  Fven  with  these  additions  it  wiis  often  lU'cessary,  as  has  been 
soon,  to  call  on  the  juisoners  to  assist  in  working  the  shi[>. 

The  United  States  believe  that  after  this  statenient  of  the'  occurrences 


'  Hiit.  App.,  vol.  i,  p.  «17.  •'  Ihid.,  p.  (!4(t. 

-  Am.  Ajip.,  vol.     i,  p.  (iitS.  >•  \\v\l.  App..  vol.  i.  p.  .'if^. 

'  liiit.  App.  ComiK'r  Case,  vol,  v.  p.  H,",.         ;  IMd.,  p.  (Ul. 
'  Hi  It.  App.,  vol.  i,  p.  r>7-t.  "  Am.  App..  vol.  vii,  p.  1»7. 

AKidiivils  follvch'd  in  Am.  \\i\k,  vol.  vii,  pp.  [>-2  <l  mij. 


rr 


132 


ARGUMENT    OF   THE    UNITED    STATE8. 


at  Melbourne,  the  Arbitrators  will  be  surprised  to  find  in  a  report  of  the 
Governor  of  the  Colony  to  the  Home  Government,  detailing  the  facts 
substantially  as  they  are  now  given,  the  following  passage  : 

I  will  not  cloHO  my  report  of  those  transiirtlons  without  assuriii^j;  yon  that  iiothiiij; 
could  be  furtiier  tVoiii  my  intention  or  that  of  my  advisers  than  tliat  the  letter  of  tin; 
Commissioner  of  Trade  and  Customs  of  the  l.'ith  instant  should  be  Justly  ojien  to  the 
chargt!  of  being  <lisresi»e(;tful  and  insulting  to  the  Government  at  Riohmond.  A  clear 
rei!apitulation  rf  the  facts  appeared  to  lie  expedient,  if  not  necessary,  for  reasons  wliicli 
I  have  already  stated ;  while  thci  retVuenco  to  that  Government  was  a  direcit  and  natnial 
consequence  of  the  declaration  in  Lieutenant  Waddell's  letter  of  the  I4th  instant,  tiuMi 
under  reply,  that  he  had  written  as  connnander  of  the  ship  representing  his  Govern- 
ment in  Hritish  waters.  Nor  can  I  omit  to  observe  that  it  would  have  been  more  con 
sistent  with  tlie  n^presentative  character  in  which  Lieutenant  Waddell  thus  declanil 
himself,  if,  possessing,  as  ho  did  throughout,  ampler  j)owor  and  means  to  ascertain  that 
''is  ship  had  not  become  a  place  of  concealment  for  British  subjects  seeking  to  violate 
or  evade  the  law,  he  had  employed  that  power  and  those  means  mort;  etlectively  before 
commilting  himself  to  a  solenni  assertion,  which  eventually  proved  incorrect,  and  if, 
upon  the  discovmy  that  these  men  were  on  board  his  ship, (assuming  that  discovery  to 
have  been  nnule  as  he  alHrnis  it  was  after  he  had  dispatched  his  letter  of  the  I4th,)  he 
had  iuuncdiately  apprised  the  Government  of  tiie  mistake  he  had  eonimittod,  instead  of 
leaving  it  to  be  brought  to  light  by  the  apprehension  of  the  euliuits  themselves,  an'. 
through  the  medium  of  a  police  examination.' 

In  less  than  sixty  days  after  this  re[»ort  was  written,  and  b.^fore  any 
advices  of  what  had  been  done  could  have  reached  Uichniontl,  there  was 
110  "Governraent"  there  to  be  insulted,  or  to  vrhich  representations  could 
be  made.  The  armies  of  the  insurgents  had  surrendered,  aiul  those  who 
had  administered  the  Government  were  fugitives. 

Only  ten  days  before  the  date  of  that  report,  and  after  it  was 
apparent  to  all  that  the  sirtiggle  of  the  insurgents  was  nearly  at  an  eml, 
Her  Majesty's  Secretary  of  State  for  Foreign  Aftairs  addressed  the  first 
remonstrance  of  his  Government  to  the  agents  of  the  insurgents,  and 
after  stating  that  the  "unwarrantable  practice  of  building  ships  in  this 
country  to  be  used  as  vessels  of  war  against  a  State  with  which  Her 
Majesty  is  at  peace  still  continues,"  says,  "Xow,  it  is  very  possible  that 
by  such  shifts  and  stratagems  the  penalties  of  the  existing  laws  of  his 
country,  nay,  of  any  law  that  could  be  enacted,  may  be  evaded ;  but  tlio 
offense  thus  ofiered  to  Her  3Iajesty's  authority  and  dignity  by  the  <lf 
facto  rulers  of  the  Confederate  States,  whom  Her  .Majesty  acknowledges 
as  belligerents,  and  whose  agents  in  the  United  Kingdom  enjoy  the 
benefit  of  our  hosj)itality  in  quiet  security,  remains  the  same.  It  is  a 
proceeding  totallv  unjustifiable  and  manifestly  oftensive  to  the  liritisli 
Crown."-' 

It  is  a  source  of  pleasiue  to  the  United  States  to  learn  that  at  last  Hci 
Majesty's  Government  did  realize  that  the  practices  of  the  agents  »)}tl»' 
insurgents,  whic.'h  had  been  continued  for  so  many  years,  were  "  maiii 
festly  otl'ensive."    It  woidd  have  been  more  gratifying,  however,  if  this 
manifestation  had  been  noticed  at  a  somewhat  earlier  date. 

The  Consul  of  tlu>  Uniti^d  States,  in  reijorting  the  fa(!ts  to  his  Govern- 
ment on  the  sanje  day  that  the  Governor  reported  to  the  Government  ot 
Her  Majest}',  uses  the  following  language: 

What  motives  may  have  juomptiMl  the  antlnnititss,  with  evidence  in  tluMr  (tossessidii 
as  to  the  shipment  of  large  ninnbers  of  persons  (»ii  board  said  vessel,  substantiated  liv 
the  eai>tur(^  and  commitment  of  souu;  esca|)ing  from  said  ship,  to  allow  tlie  said  vcsmI 
to  continue  to  enjoy  tlie  i>riviieg(^s  of  neutrality  ■  coaling,  provisioning,  and  di'i);nt 
ing,  with  the  atlidavits  and  information  lodged  ami  not  fully  satistied,  I  am  at  a  loss  to 
(conceive.  Was  it  not  shown  and  i)roved  that  the  neutrality  was  violated  ?  A?nl  vrf 
she  was  allowetl  her  own  way  unmolestiMl,  thus  enabling  her  to  renew  her  violationst't 
neutrality  on  a  larger  scale.  There  ure  eyt^s  that  do  not  see  and  ears  that  do  not  lunr, 
and  I  fear  that  this  port  is  endowed  with  such  ii  |)ortion  of  them  as  may  be  re((uiri'il  to 


JJrit.  App.,  vol.  i,  p.  .M>D. 


•' Avi.  App..  vol.  I,  p.  (iHl. 


THE    SHENANDOAH. 


133 


CiintrnsI     liclwci'n 
til-  i..iir-M  CM   Ilr.i7il- 

JMI    :>M.I   ol    llMll'-liail 

llinnlii-''. 


suit  the  occasion  ;  for  in  what  otln^r  way  can  my  unsiiccesHful  attempt.*^  to  oUtaiii  tlie 
iissistaiice  of  tin;  authorities  on  the  cvtinin;;  of  the  ITtli  instant  be  ixithiincd  ? ' 

The  United  States  believe  the  Aibitiatois  will  a.oiee  with  the  Consul 
in  all  that  he  has  said. 

And  here  ajjain  the  United  States  must  ask  the  Arbitrators  to  contrast 
the  conduct  of  Her  Majesty's  Crovernnient  with  that  of  His 
.Majesty  the  Emperor  of  Brazil,  who,  as  early  as  .1  une  -3tl, 
l.S(i;},  upon  much  less  provocation  from  these  same  belli;;er- 
(Mit  insurgents,  caused,  among  others,  the  foUowing  salutary  rules  to  be 
l>roinulgated  for  thejiuidance  of  the  presidents  «)f  liis  several  juovinces: 

ti.  Not  to  admit  in  thi'  ports  of  the  Empire  the  belligerents  which  may  once  have  vio- 
lated neutrality. 

T.  To  cause  to  retire  imiiu'diately  from  the  niiiritiine  territory  of  the  Empire,  with- 
out furnishing  tiiem  witli  any  supplies  whatever,  the  vessels  which  attempt  to  violate 
neutrality. 

•~.  Finally,  to  make  use  of  force,  m'  in  default,  or  by  the  insnfliciency  of  the  same,  to 
]irotest  solemnly  and  energetically  against  tiu;  bcdligerent,  who.  being  v.ariu'd  and  in- 
timated, does  i.ot  d.'sist  tVoni  violating  the  m.'utrality  of  tiie  J'2mpire.  - 

From  ^Melbourne  the  Shenandoah  made  her  way  to  the  Island  of  As- 
cension, where,  about  the  4th  of  ]March,  she  destroyed  four  whaling  ves- 
sels at  anchor  in  the  harbor.  One  of  these  vessels  was  from  Uonolulu, 
luider  the  Honolulu  Hag,  and  cominanded  by  a  citizen  of  Honolulu.  She 
remained  at  this  island  until  about  the  14th  of  ^March,  and  then  cruised 
for  nearly  a  month  otf  the  coast  of  Japan.  The  latter  part  of  May  she 
arrived  in  the  Ochkot.sk  .sea,  where,  on  the  i'Tth  of  May,  she  captured 
and  destroyed  the  whaling  sliii)  Abigail,  Captain  ^ye.  She  then 
.sailed  for  Cai)e  Thaddeus,  a  place  much  fre(piented  by  whaling  shii»s, 
and  arrived  there  about  the  2Uth  of  June,  between  that  time  and 
the  L'8th  she  captured  twenty-four  whaling  ves.sels  with  their  cargoes 
and  out  lit,  and  destroyed  all  except  one,  the  largest  number  having 
been  taken  on  the  28th.  The  United  States  believe  the  Arbitrators  will 
find  from  the  testimony  of  Captain  Xye,  Captain  Hathaway,  and  W.  H. 
Temple,  '  that  most,  if  not  all  of  these  captures  were  matle  after  Lieu- 
tenant Waddell  had  received  news  th  "  the  wiir  had  ended. 

It  is  true  it  is  said  in  the  liritish  <  •  '•  that  the  commander  of  th*' 
Shenandoah  positively  atlirmed  that  h«  had,  on  receiving  intelligent  e 
of  the  downfall  of  the  (Jovernment  by  whicii  he  vas  commissioned,  de- 
sisted instantly  from  further  acts  of  war,'''  ImL  it  must  b(  l)orne  in 
mind, that  the  same  commander  had  previously  ma»le  some  "  positive" 
statements  at  Melbourne  which  were  afterwards  found  by  Her  Majesty's 
ullicers  there  not  to  have  been  in  all  respects  true,  and  under  thex  eir- 
cumstances  tne  United  States  believe  that,  if  it  becomes  material,  the 
Arbitrators  will  give  more  credence  to  the  atUdavits  of  tic  intelligent 
ouptains  than  to  the  iissertions  of  the  kite  commander.  Although  the 
testimony  of  Temple  was  severely  criticised  by  the  attorney  of  tin*  com- 
mander at  the  tinu^  it  was  presented,  all  his  statements,  materi  i  iothis 
question,  have  been  fully  sustained  by  the  testimony  of  tli-  iher  wit- 
nesses (tbtainetl  since  that  time. 

The  insurrection  came  to  an  en«l  iv  the  month  of  April,  ISO,").     On 

tliC!  L'Oth  of  .hme,  Mr.  Mason,  one  of  the  agents  of  the  insurgents  in  ii<.i!- 

•lon,  addressed  a  note  to  Earl  IJus.sell  in  which  he  said : 

It  lieing  considered  important  and  right,  in  tlie  present  eomlition  of  the  Confederatti 
Slatev  oC  America,  to  arrest  lurther  hostile  luoeeedings  at  sea  in  tlie  war  against  tiio 
I'nited  States,  those  having  iiuthoiity  to  do  so  in  Eurojte  desire  as  speedily  its  prae- 
ticalde  to  communicate  witli  the  Shenandoah,  the  only  renniining  Confetlerate  ship  in 
I  oimnissidii,  in  order  to  termiiwite  her  ei  uise.     Having  no  nu'ans  of  doing  this  in  tiie 


^  -f    i 


I       I 


4 


Am.  App.,  \()].  vi,  ]i.  .V.t'). 
Ibit.  App..  vol.  i.  p.  '.'*•:', 


Am.  Apj).,  vol.  vii,  pjt.  IM,  *.•;'». 
Mrit.  t'iise,  p.  l.'iT. 


Itrit.  Ajtp,,  vol.  i,  p.  <>!•!{. 


■■V, 

■  M 
I     '    ■ 
1 

134 


ARGUMENT    OF   THE    IXITED    STATES. 


distant  ncus  wlicrc,  that  sliip  is  prosiinKMl  now  ti)  he,  I  vt-ntiiro  to  in(|niio  of  yonr  lord 
shil>  wlicthor  it  will  lit^  ii^jrcciililu  to  the  (iovcrmiicnt  of  Wvv  Mii.ji-sty  t(»  iiUow  this  to 
be  done  thiouyli  tho  British  consuls  at  ports  whoio  the  ship  may  be  txix-cted.' 

!I\Ir.  Mason  inclosed  an '*onler"  from  Bullock,  written  at  Liverpool, 
and  addressed  to  Lieutenant  Waddell,  in  which  the  followinjj  appears: 

I  have  discussed  the  above  circnnistauces  fully  with  tlio  Hon.  J.  M.  ^fa,«;jM,  the 
diplomatic  representative  of  the  Confederate  States  in  Enjiland,  and  in  accordance 
witli  liis  opinion  and  advice  I  hereby  direct  you  to  desist  from  any  further  destruction 
of  United  States  property  upon  the  high  seas,  and  from  all  oft'ensive  gperations  agaiu.st 
the  citizens  of  that  country. ' 

This  order  of  Bullock  was  sent  through.  Earl  Rus.sell  to  the  consuls 
of  Her  Majesty  at  the  points  where  it  was  expected  the  Shenandoah 
might  appear. 

On  the  Gtli  of  Noveniher  she   again  arrived  at  Liverpool,  and  her 


SluMi  a  mi  u  a  I. 

I-IVLTJIUOI. 


officers  and  men  were  landed  there  and  discharged. 


m 


'  Brit.  App.,  vol.  i,  p.  Cm.\. 


-  Ibid. 


X.-THE  SUMTER,  THE  NASHVILLE,  THE  RETRIBUTION,  THE 
TALLAHASSEE,  AND  THE  CHICKAMAUGA. 


The  attention  of  tbe  Arbitrators  has  thns  far  been  directed,  in  the 
j)rogres8  of  this  investigation  of  facts,  to  vessels  which  left  Great 
Britaii^  to  receive  their  armament,  and  which  were  afterward,  withont 
having  been  engaged  in  any  other  service,  actually  armed  for  war. 

The  United  States  claim,  however,  that  Great  Jiritain  failed  to  fulfill 
its  <luties  toward  tbem  in  respect  to  certain  other  vessels,  to  wit,  the 
Sumter,  j^ashville,  Itetribution,  Chickamauga,  and  Tallahassee.  The 
facts  upon  which  a  claim  is  predicated  for  compensation  on  account 
of  the  acts  coniuiitted  by  these  vessels  have  already  been  stated  in  the 
Case  which  the  United  States  have  had  the  honor  to  present  for  the 
consideration  of  the  Tribunal.  Her  Majesty's  Government  has,  how- 
ever, in  its  Case  and  Counter  Case,  submitted  some  new  evidence  which 
makes  it  proper  for  the  United  States  to  present  hi  this  argument,  as 
briefly  as  is  i>ossible,  a  summary  of  the  material  facts  in  respect  to 
these  vessels  as  they  now  appear  from  the  evidence  and  allegations 
submitted  by  both  the  parties. 


Till'  SiilnliT. 


THE    SUMTEK. 

This  vessel  was  originally  in  the  merchant  service  of  the  United 
States,  and,  at  the  outbreak  of  the  rebellion,  was  em- 
]>Ioyed  as  a  i»acket  between  New  Orleans  and  Havana. 
Hoon  after  the  blockade  of  the  port  of  New  Orleans,  she  was  fitted  and 
armed  for  a  vessel  of  war,  and,  having  escaped  on  the  .'JOth  of  June,  18G1, 
tliroiigh  the  blockade  at  the  mouth  of  the  Mississippi  Kiver,  appeared, 
on  tiie  (Jth  of  July,  at  the  port  of  Cienfuegos,  in  the  island  of  Cuba, 
with  six  prizes  which  she  had  captured  on  her  voyage  thither.^  The 
prizes  were  detained  in  port  upon  the  order  of  the  Captain-General  of 
tiie  island,  and  subsequently,  on  the  -8th  of  the  same  month,  "uncon- 
ditionally" released  "in  consecjuence  of  investigations  made  by  the  au- 
thoi  ities  of  Cienfuegos  concerning  their  capture."^  The  Sumter,  during 
lier  stay,  was  permitted  by  the  local  authorities  at  the  port  to  take  coal 
and  wateK '  No  application  was  made  to  the  Governor-General  for  that 
jturpose.'  She  went  to  sea  in  the  evening  of  the  7th  of  July,'  having 
KMiiaiued  in  port  about  twenty-four  hours. 

On  the  17th  of  July  she  arrived  at  Curacao,  in  Dutch  Guiana,  where 
slic  was  permitted  to  supply  herself  with  coal  and  i)ro- 
visions.''  She  next  appeared  at  Puerto  Cabello,  in  the  re- 
public of  Venezuela,  on  the  L*Gth  of  July,  with  a  prize,  but  being  ordered 
to  "  take  her  departure  within  f<mr  and  twenty  hours,"  left,  without 
coaling,  at  daylight  on  the  l-'7th,"  and  arrived  at  a  British  port  in  the 


At   C'ur;noa. 


'  I5iit.  Apjt.,  Couiitor  t'liM', 
•  Iliiil.,  i».  KIH. 
'  lliid.,  It.  104. 
'  Ibitl.,  I).  10». 


1».  lUl.    ^  Il.td.,  i».  104. 
'  Il»i«l.,  p.  til». 
"  Cruise  of  Alahanm  and  Sinuter,  p.  27. 


•s, 


It  • 


*t^ 


•i4* 


feci " 


I      r 
'1  - 


f  J. 


Ml 


"-^u 
i'*i-'  s 


136 


ARGUMKNT    OF    THE    UNITKD    STATES. 


At  <iilM.'iMiir. 


island  of  Tiinitlad,  on  the  30tli.    Here  she  was  "supplied  with  a  new 
^  ^    ^^^  main  yard,  eighty  tons  of  coal  and  provisions,"  and  sailed  in 

the  evening  of  the  5th  of  Angust.  •  She  next  appeared  at 
Paramaribo,  in  Dntch  Guiana,  on  the  lOtii  of  August,  and  purchased  and 
received  coals  without  objection  on  the  part  of  the  authorities.  Kemain- 
ing  at  this  port  until  the  31st,^  she  appeared  at  the  Brazilian  port  of 
Maranham,  on  the  Gth  of  September,  "  to  coal  and  procure  supplies.'' ' 

From  this  port  she  went  to  ^[artinique,  where  she  also  received  coal 
and  supplies,  and  from  there  to  Cadiz,  at  which  place  she  ar- 
t  .,ri.m...        liygd  0,1  (;i,g  4ti^  of  January,  1802.  ^    Here  she  was  permit- 
ted to  go  into  dock  and  make  some  slight  repairs.^    "  Thecaptain  of  that 
vessel  [the  Sumter]  asked  for  reparations  in  her  upper  works 
^>nd  in  her  decks,  but  after  a  scientific  survey  scrupulously 
executed,  it  '  as  found  that  such  reparations  were  not  necessary,  and 
only  those  which  were  Justified  by  an  imperious  necessity  have  been 
authorized.""     She  was  ordered  away  from  Cadiz  on  the  17th."     The 
Minister  of  the  United  States  at  ^Madrid,  in  reporting  to  3Ir.  Seward, 
said  :    "  I  ought  to  say,  perhaps,  that  if  it  had  not  been  for  the  example 
of  what  had  taken  place  with  the  Xashville  in  an  English  port,  1  am 
confident  that  the  Sumter  would  have  been  forced  to  go  to  sea  from 
Cadiz  as  she  came,""     From   Cadiz   she  went  direct  to 
Gibraltar,  at  which  place  she  arrived  on  the  18th  of  Janu- 
ary, 18G2. 

bn  the  28th  of  August,  18()1,  the  United  States  complained  to  the 
Government  of  the  Netherlands  of  the  treatment  of  the  Sumter  at  Cu- 
ra<^ao, "  and  on  the  8th  of  October  madesimilar  complaint  as  to  the  con- 
duct of  the  colonial  authorities  on  the  occasion  of  her  subsequent  visit  at 
Paramaribo.'" 

On  the  l.'jth  of  October  the  Minister  of  Foreign  Attairs  advised  the 
Minister  of  the  United  States  at  the  Hague,  "that  the  Government  ot 
the  Netherlands,  wishing  to  give  a  fresh  proof  of  its  desire  [to  avoid] 
all  that  tould  give  the  slightest  subject  for  complaint  to  the  United 
States,  has  Just  sent  instructions  to  the  colonial  authorities,  enjoining 
them  not  to  admit,  except  in  case  of  shelter  from  stress  [rcldche  forwe,) 
the  vessels  of  war  and  privateers  of  the  two  belligerent  parties,  unless 
for  twice  twenty-four  hours,  and  not  to  permit  them,  when  they  arc 
steamers,  to  provide  themselves  with  a  (piantity  of  coal  more  than  suf- 
ficient for  a  run  of  twenty-foju*  hours."  " 

On  the  tJOth  of  September,  1801,  Mr.  Adams  made  complaint  to  I'^arl 
Russell  of  the  manner  in  whicii  the  Sumter  liad  been  received  at  Trinidad, 
but  as  early  as  the  2f)th  of  August  the  Duke  of  Newcastle  had  trans 
mitted  to  the  Foreign  Office  a  report  from  the  Governor  of  the  island  to 
the  Coloni.al  Ollice,  and  which  was,  of  course,  in  the  possession  of  Earl 
Jiussell  when  he  received  the  communication  from  ]\lr.  Adams.  In  that 
report  of  the  Governor  this  passage  occurs  : 

A  {jreat  doal  of  tradci  irocs  on  between  Trinidad  and  tlio  nortliorn  ports  of  North 
America,  and  Captain  SeniineM,  I  iniajfino,  lias  not  failed  to  take  this  opportnnity  of 
obtainiiifj  information  with  rcj^ard  to  tin,'  vessels  employed  nnder  the  (lag  of  the  L'niti'il 
States  in  this  tratlic.  Fears  are  entertained  with  re^^ai'd  to  one  or  two  now  expeetiMl. 
It  is  to  be  hoped  that  the  presence  ot  the  Snmter  in  these  wat<MS  will  soon  be  made 
fjenerally  known,  and  that,  while  the  civil  war  continnes,  the  lumber  and  i)rovisii)n 
trade,  any  interruption  of  which  would  cause  serious  emburru88ment  to  this  commu- 
nity, will  be  carried  on  in  Ibitish  bottom«.'- 


'  IJrit.  App.,  vol.ii,  p.  .' 

-  Ibid.,  p.  .xl. 

'  Ibid.,  p.  1. 

'  Ibid.,  p.  111. 

•  Ibid.,  |».  11«!. 

"  Brit.  App.,  vol.  vi,  p. 


1  ly. 


"  Adams  to  .Seward,  Am.  Ajut.,  v<d.  ii,  p.  r>'/ll. 

"  Jhit.  App..  vol.  vi,  p.  IIU. 

'  lltid.,  p.  (il*. 
'"  Ibid.,  p.  HI. 
"  ll)id..p.  f4. 
'-  Urit.  Ai)p.,  vol.  ii,  p.  I. 


THE    srMTER. 


137 


Oil  the  4th  of  OiJtober  Eirl  Russoll  informed  Mr.  Adams,  "  the  Law 
OlUcers  of  the  Crown  liave  reported  that  the  conduct  of  the  (lovernor- 
was  in  conformity  to  Her  Majesty's  proclamation."  ' 

On  the  1st  of  November  the  3Iinister  of  the  United  States  at  Rio 
.^aneiro  comphiined  to  the  (iovernment  of  His  Majesty  the  Emperor  of 
Brazil  of  tl»e  conduct  of  the  provincial  authorities  durinj^  the  stay  of 
the  Sumter  at  ^laranhani.^  A  long-  correspondence  ensu<?d,  connected 
with  the  visit  of  this  vessel  and  those  of  other  insurgent  cruisers  sub- 
se(iuently,  which  resulted  in  the  promulgation  of  the  instructions  to  the 
presidents  of  the  provinces  of  the  Empire,  under  date  of  the  2.'3d  of  June, 
1803,  to  which  reference  has  already  been  made. ' 

It  is  sufficient  for  the  purposes  of  this  Argumerit  for  the  United  States 
to  say,  that  during  the  contest  between  them  an.l  the  insurgents,  abuse 
of  neutr'^lity  was  never  tolerated  in  the  ports  of  the  Netheilands  or 
Brazil,  ai.d  these  ports  were  'lever  suttered  to  be  used,  by  either  of  the 
belligerents,  "as  the  base  of  their  operations  against  the  commerce  of 
the  adverse  party."' 

It  is  true  that,  on  the  ulst  of  January,  l<S(j2,  certain  "orders  to  be 
observed  in  all  the  ports  of  the  United  Kingdom,  and  those  of  Her  Maj- 
esty's transmarine  territories  and  p.)Ssessions,"''  were  issued  by  Her  Bri- 
tannic M.njesty's  Government,^  and  that,  by  the  "first  and  second  of  the 
*  *  *  orders,  belligerent  vessels  wore  j'bsolutelj' excluded  from  the 
ports,  roadsteads,  and  waters  of  the  Bahama  Islands,  except  in  case  of 
stress  of  weather,  or  of  special  leave  granted  by  the  lieutenant-governor." 
It  is  also  true  that,  "to  vessels  of  the  Confederate  States  it  [access  to 
these  islands]  was  of  great  importance,  the  harbors  of  these  State  s  being 
generally,  though  not  always,  effectively  blockaded."'^  But  the,  United 
States  have  not  yet  been  able  to  discover  that  the  "si)ecial  leave"  re- 
quired by  the  orders  was  ever,  during  the  entire  contest,  withheld  by 
the  Lieutenant-Governor  from  any  insurgent  vessel  of  war,  and  that,  too, 
notwithstanding  the  long-continued  and  flagrant  abuses  of  the  hospitab 
ities  of  British  ports,  to  which  the  attention  of  the  Arbi  trators  has  already 
been  directed. 

The  Sumter  went  to  Gibraltar  for  coal.  The  Consul  of  the  United 
States  was  enabled  to  jirevent  her  obtaining  a  supply  from  the  mer- 
chants at  that  port,  until  the  arrival  of  certain  vessels  of  war  of  the 
United  States  in  the  adjoining  watrvs  of  Spain,  and,  after  that  time, 
her  movements  were  so  closely  watched  by  these  vessels,  that  she  was 
never  able  to  escape  in  the  character  of  a  ship  of  war. 

Her  crew  was  discharged  and  paid  off  in  April,"  and  previous  to  the 
Stb  of  December,  while  she  was  yet  in  i)ort  fully  armed,  a  private  con- 
tract was  made  by  the  insurgents  ibr  her  sale  for  £4,000.  The  pur- 
chasers were  ready  with  the  money  to  pay  for  her,  and  receive  the  bill 
of  Stale,  but  "  all  the  papers  required  by  them  could  not  be  produced  by 
tbc  otlicer  in  charge,  *  *  ♦  who,  it  appears,  holds  a  power  of 
attorney  from  a  certain  Bullock,  who  styles  himself  senior  naval  officer 
ill  the  Confederate  service  in  Europe,  and,  I  am  told,  is  at  present  in 
I'ligland,  giving  his  attention  to  what  relates  to  the  nnirine  service  of 
the  rebel  States.''*  In  conseciuence  of  this  informaHty,  the  sale  was  not 
consummated,  and  on  the  same  day,  the  8th,  she  was  advertised  to  be 
sold  at  public  auction."     The  Consul  of  the  United  States  protested 


'  Hrit.  Case,  p.  14. 

Hrit.  App.,  vol.  vi,  p. 

■  liilc,  ]).  iit<7. 
'  hrit.  Case,  p.  15. 


''  Ibid.,  p.  17.  • 

'  lirit.  Case,  p.  li^. 

'  SiMiij^iie  to  Adams,  Am.  App.,  vol.  ii,  p.  507. 
"  Ibid.,  p.  .'".Oy. 


iii 


■V 


\     I 


i;{8 


AKGIMKNT    OF    THK    I'MTKI)    STATKS. 


A'l  LiMTpniil. 


against  such  sale  beiii};  allowed  in  the  port,  statinjr,  among  other  things, 
that  it  was  being  "  made  for  the  jinrpose  of  avoiding  a  capture  by  the 
cruisers  of  the  United  iStates.''  It  seemed  to  the  commander  of  the 
United  States  war-vessel  Kearsarge  that  ••  the  sale  of  so-called  Confed 
erate  war-vessels  in  JJritish  ports  is  an  act  as  unfriendly  and  hostile  to 
our  [hisj  (fovernment,  as  tiie  purchase  of  war- vessels  in  their  ports  by 
the  same  party.'-'  He  therefore  advised  the  consul  to  enter  his  protest 
against  the  sale. 

On  the  l*.>th,  the  ibrm  of  a  sale  was  gone  through  with,  but  the  nom- 
inal purchaser  was  i\I.  G.  Klingender,  intimately  connected  with  the  tinn 
of  Fra/er,   Trcnholm   &  Co.'     She    afterwanl   received  a 
liritish  registry,  and  went  to  Liverpool  under  Hritish  colors, 
aTid  from  that  time  was  used  as  an  insurgent  transport. 

On  the  14th  of  October,  1803,  the  following  signilicant  letter  was 
written  by  Prioleau,  of  the  firm  of  Frazer,  Trenholm  «S:  Co.,  at  Jiivei 
pool,  to  Major  lluse,  which  explains  itself: 

Toiichiiijj  tlio  Gibraltar,  forniorly  Snnitor,  tVu\  jc'"  not  a<lvi>i"  the  {joverninont  tliiit 
you  liad  taken  her  for  tlie  war  (lt'i»artiiu»iit  '  Tliey  ilo  in>t  iiinli'i stand  it  oiittliern,  and 
you  must  eoun)  hort;  and  settle  it  somehow  as  early  as  you  eon  veniently  can.  1  will 
adopt  either  of  three  courses  wliicli  you  may  prefer :  To  if^non;  our  ownership  altn- 
pether,  and  consider  her  always  the  jiroperty  of  the  jjoveriinieiit.  'id.  To  sell  her  to 
the  government  at  a  fair  valuation  on  Iu.t  leavinj;  here,  '.U\.  To  keep  her  .t.s  our  own 
from  the  time  of  purchase  in  Giltraltar,  aud  char<;e  you  the  rejiular  rate  of  freight  for 
the  voyage  to  Wilmington,  say  £()0  per  ton.  The  tirst  is  tiie  best  jdan,  I  think.  Cttr- 
tainly  for  the  government  it  is.  Of  course  you  know  tiuit  it  was  luit  she  tiuit  was  sunk 
in  this  harbor.  8he  was  at  Wilmington  lately,  and  before  she  M  lost  or  returns  here, 
the  matter  ought  to  be  arranged.^ 

As  has  been  seen,  the  sale  of  the  Georgia  was  afterward  permitted  in 
the  port  of  Liverpool.  After  that,  but  not  until  the  0th  of  September, 
1801,  an  order  was  promulgated  by  Her  Majesty's  Government,  that 
"  for  the  future  no  ship  of  war  belonging  to  either  of  the  belligerent 
powers  of  North  America  shall  be  allowed  to  enter,  or  to  remain,  or  bo 
in  any  of  Her  Majesty's  ports,  for  the  purpose  of  being  dismantled  or 
sold.''^ 

"When  this  order  was  made  the  insurgents  had  no  armed  ship  of  war 
to  be  disniantled  or  sold. 


T  U  E    N  A  SH  V  1  L  L  K. 

This  vessel,  like  her  predecessor,  the  Sumter,  had,  previous  to  tlie 
outbreak  of  the  rebel liou,  been  employed  in  the  merchant 
service  of  the  United  States  as  a  packet  running  between 
New  York  and  Charleston.  She  passed  the  blockade  at  the  latter  port, 
on  the  night  of  the  20th  of  August^  liaviug  been  lightened  for  that  pur 
pose,"  and  arrived  at  the  port  of  St.  George,  in  the  island  of  Bermudii. 
on  the  30th,  a  little  more  than  three  days  after  leaving  her  homo 
port." 
Atiirmuh,  She  presented  herself  at  Bermuda  as  a  vessel  of  war. 

Governor  Ord,  in  his  report  to  the  Duke  of  Newcastle,  .says:  "I  havo 


'  Hrit.  Ca.se,  p.  18. 
-■  Am.  Ai>p.,  vol.  ii,  p. 
'  Ibid.,  p.  .'Jir). 


ilO. 


Am.  App.,  vol.  vii,  p.  71. 


■  Brit.  App.,  vol.  iii,  p.  20. 

'■  IJernard's  Neutrality,  p.  267. 

■  Brit.  Case,  p.  21 ». 


TIIK    NASI  I  villi:. 


139 


the  lioiior  to  JUMiiiaint  your  excelU^ncy  tluit  tlicse  islands  wore  visited, 
on  tli«'  .JOtli  ultimo,  by  tlu^  Coiife«lerat<i  States  paddlewlieel  steamer 
Nashville,  (!omui.uided  by  Ijieuteiiant  I'eayram."'  The  Duke  of  New- 
castle, ill  sen»liiiy  this  report  to  the  Foreij^n  OHice,  describes  her  as  the 
"Confederate  States  steam-vessel  Nashville."-  In  point  of  fact  her 
character  as  a  ship  of  war  is  conceded  in  the  JJritish  Case,  as  on  pajje 
I'O  it  is  stated  "■  that  she  was  commissioned  as  a  shii>  of  war,"  and  that 
"her  comman(h'r  api)li(Ml  for  leave  to  draw  a  sup])ly  of  coals,"  «S:c.  And 
ill  the  letter  of  Karl  llussell  to  Mr.  Adams,  replying-  to  the  claim  by 
Mr.  A«lams,  that  she  was  not  a  vessel  of  war,  found  on  page  21,  it  is 
said,  "The  un«lersigned  has  to  state  that  the  Nashville  appears  to  be  n 
Confederate  vessel  of  war ;  her  commander  and  otlicers  have  commis- 
sions in  the  so-styled  Confederate  Navy." 

She  was  allowe<l  to  coal  at  Bermuda,  and  it  was  known  to  Governor 
Ord,  when  he  saw  her  taking  on  coal,  as  he  did,  that,  when  she  left 
Cliarleston,  "it  was  intended  to  coal  at  JJermuda."'  JJe  also  knew  that 
she  was  a  vessel  of  war,  and  that  she  was  on  her  way  to  England,  for 
lie  says,  "  She  has  every  chance  of  reaching  ]<2ngland  unmolested  by  the 
United  States  vessels  of  war.''^ 

She  could  not  lun  the  blocka<le  with  a  full  supply  of  coal,  as  she  had 
been  (;ompelled  to  diminish  her  <lraught  for  that  [lurpose;  therefore,  she 
was  short  of  etfective  i)ower  as  a  vessel  of  war  when  she  left  her  home 
port.  An  increa.se  of  her  supply  of  coal,  beyond  what  she  had  origi- 
nally on  leaving  Charleston,  wouhl  augment  her  naval  force,  and  if  she 
Iclt  her  home  jwrt  with  the  intention  of  thus  augmenting  her  power 
wlicii  she  arrive<l  at  JJermuda,  and  the  Governor,  with  a  knowledge  of 
that  intention,  allowed  it  to  be  done,  he  did  sutler  the  insurgents  to 
make  use  of  tliat  port  of  Iler  Majesty's  dominions  as  a  base  of  naval 
operations  against  the  United  States. 

The  run  from  Charleston  to  Bermuda,  as  has  been  seen,  occupied  but 
little  more  than  three  days.  On  arrival,  her  supply  of  coal  was  ex- 
hausted. Her  voyage  from  J»ermuda  to  Southampton  lasted  from  the 
4th  to  the  L'lst  of  November,  or  between  seventeen  and  eighteen  days. 
To  enable  her  to  make  that  voyage,  .she  had  permission  to  take  on  board 
six  hundred  tons  of  coal.'  Ft  now  appears  she  only  took  four  hundred 
uikI  forty-two  and  a  half,  or  four  hundred  and  seventy-two  and  a  half 
toii.s;*'  but  it  matters  litthi  whether  this  was  the  true  amount,  or  that 
wliicli  was  originally  sui>posed  ami  reported  by  the  Governor.  Either 
wiis  sufllicient  to  enable  her  to  reach  and  destroy  the  Harvey  Birch  on 
the  l!)th,  within  two  days'  run  of  Southani[>ton.  Without  this  supply 
that  capture  could  not  have  been  made. 

Ill  the  British  Counter  Case  it  is  .said,  "  No  act  appears  to  have  been 
<h)iie  by  the  Governor,  and  no  permission  asked  or  granted." "  There- 
lore,  it  is  claimed  there  was  no  permission  given  to  (;oal.  At  the  sanu' 
time  it  is  admitted  the  Governor  sutiered  the  taking  on  of  an  unlimited 
siipi)ly. 

After  leaving  Nassau,  and  after  the  destruction  of  the  Harvey  Birch, 
she  arrived  at  Southamj)ton,  and  was  permitted  to  repair 
•111(1  coal.  On  her  way  from  Southampton  to  a  port  of  the 
iiisiugents,  she  stopped  again  at  Bermuda  from  the  20th  to  the  24th  of 
I'ebruary,  and  took  on  coal  from  the  Briti.sh  ship  Mohawk." 


At  Sdiithiiiiptoii. 


H' 


t 


?     1 


".i^ 


'  it--?. 


'  Hrit.  App.,  vol.  ii,  p.  87. 

•  Iltitl. 

'  ll.id. 


*fJov.  Ord  to  Duke  of  Newcastle,  Brit.  App.,  vol.  ii,  p.  87* 

"  IJrit.  App.,  Counter  Case,  vol.  v,  p.  IK. 

■  I'iiKi'  70. 

"  Hrit.  App.,  vol.  ii,  p.  128. 


»*pr 


140 


AROrMP:XT    OF    THE    UNITED    SIATE.^. 


TliLs  was  only  ii  tew  days  after  the  (lovenior  liad  infoiined  the  Consul 
of  the  United  States  that  it  had  been  ''decided  not  to  allow  the  forma 
tion,  in  any  Jiritish  colony,  of  a  eoal  depot  for  the  use  of"  the  vessels  of 
Avar  of  the  insurgents  or  the  I'nited  States.'  After  leaving  IW-rinuda, 
and  before  atteuiptinjj  to  enter  any  port  of  the  insurju'ents,  shedestroyeil 
one  vessel. 

From  this  it  will  be  s«'imi  that  the  Nashville  received  her  entire  sap 
]>lies,  during  her  'ar«'er  as  a  ves.srl  of  war,  IVom  the  j»orts  ol' (ireat 
Ih'itaiii. 


THE    K  ET  III  IJL  TION. 


'"!i»t      i      -U- 


mmm 


This  was  a  sailing  vessel  of  about  one  hundred  tons  measurement, ' 

with  one  snudl  gun  on  «leck,'  which,  earlv  in  the  year  18(1.'., 

cruised  for  a  short  time  about  the  llahanui  Jlanks.    Her  first 

olticer  was  Vernon  Locke,  who  either  had  been,  or  afterwards  became,  a 

clerk  ibr  Adderley  »S:  Co.,  at  Nassau.' 

Jt  does  not  appear,  from  the  evidence  furnished  by  either  of  the  (Jov- 
ernmenta,  when  or  where  she  was  armed  or  <H)mmissioned.  She  was 
originally  a  steamtug,  and  em[»loyed  at  BuH'alo,  in  thi;  State  of  iN'ew 
York,  upon  liake  Erie.  Just  before  the  outbreak  of  the  rebellion,  she 
was  taken  into  the  service  of  the  United  States  ami  brought  to  the  At- 
lantic coast.  Being  driven  by  stress  of  weather  into  Cape  Fear  Kiver, 
she  was.  Just  previous  to  the  attack  on  Fort  Sumtei-,  seized  by  the  in- 
surgents.^ The  United  States  have  no  knowledge  of  the  use  made  of  her 
after  that  time,  until  she  appeared  upon  lier  cruise. 

About  the  L'8th  of  January,  18G3,  she  cai)tured  the  schooner  Hanover, 
which  was  taken  by  Locke,  the  first  officer  of  the  Itetribution  (as  is  suj)- 
posed)  to  Long  Cay,  a  sn)all  island  of  the  Bahamas.  She  was  acconi- 
jianied  to  that  island  by  the  schooner  Brothers,  owned  by  the  Messrs. 
Farrington,  doing  business  at  that  place.  Locke,  on  his  arrival,  assumed 
the  name  of  the  master  of  the  Hanover,  consigned,  as  it  appeared 
upon  her  papers,  to  ]\lr.  Kichard  Farrington.""  II is  object  was  to  sell 
the  cargo,  and  he  made  a  statement  of  the  reasons  which  induced  him 
to  come  into  port,  which  Farrington  said  he  " doubted,"  but  "did  not 
see  any  impropriety  in  his  acting  as  the  captain's  agent,"  "  inasmuch  as 
the  captain  came  to  him  properly  documented."'  A  part  of  the  cargo 
was  sold  at  Long  Cay,  and  a  part  was  ship[)edon  the  schooner  Brothers 
to  ^Nassau,  and  there  placed  in  charge  of  James  T.  Farrington,  esfj.,  sen., 
one  of  the  magistrates  of  Fortune  Lsland,  (Long  Cay.)"  The  Hanover 
was  at  the  same  time  loaded  with  salt  and  sailed  for  one  of  the  ports  of 
the  insurgents.'-' 

Complaint  as  to  these  transactions  was  made  to  the  (Jovernor  of  tlic 
]iahamas  on  the  11th  of  March,  and  he  recjuested  the  advice  of  the 
Attorney-General  as  to  "  what  ste|>s  ought  to  betaken."'"  The  Attorney- 
(leneral  replied,  on  the  10th,  "that  the  collector  of  the  revenue,  if  lu' 
had  any  cause  to  susi)ect  the  character  of  the  vessel  and  cargo,  should 
at  once  liave  arrested  both."  "  On  the  20th  of  Ajuil,  a  Mr.  Burusidc,  a 
magistrate  of  Inagua,  made  a  statenu'ut  of  facts,  as  he  had  ascertained 
them  upon  an  inquiry  instituted  for  that  purpose.'-'  This  statement  was 


'  Am.  App.,  vol.  vi,  p.  yiJl. 

^  Biit.  App.,  Countt-r  Vnnv,  vol.  v,  p.  li).*?. 

:'  Il»i«l.,  p.  l!K». 

^  Ibid.,  p.  iy«i. 

•''  Am.  App.,  vol.  vi,  p.  7'.\C>. 

'  Brit.  Api».,  C'omittT  Casi-,  vol.  v,  p.  ICH. 


'  Ibid.,  p.  1()H. 
-  Ibid.,  1(!5,  IHO. 

■'  Brit.  App.,  Counter  Ca-st",  vol.  v,  p. 
'"  Ibid. 

"  Ibid.,  p.  i<;r.. 

'-■  Ibid.,  p.  107. 


IDfi. 


THE    RKTRIUUTIOX. 


141 


the 

It  the 

Inu'Y- 

lif  lie 

lould 

|i(U',  a 

liiK'il 

It  was 


Um. 


laid  lu'foro  ^Iv.  Si'Wiinl  by  liOrd  Lyons,  and,  oii  the  24tli  of  Jmio,  Mr. 
St'Wiird  took  occasion  to  say  to  his  lordship,  that  "  the  information  thus 
coiniuunicatod  is  acceptable,  so  far  as  it  j(oes,  but  is  not  deemed  alto- 
;>('ther  conclusive.  There  still  remains  a  painful  doubt  on  the  mind  ol 
tliis  (rovernm'Mit  whether  the  authorities  ami  others  at  LoufjCJay  were, 
as  Mv.  IJurnside  thinks,  i;?norant  that  the  Hanover  was  a  prize  to  the 
Retribution.  I  shall  b(!  happy  if  the  in(niiry  shall  be  prosecuted  so  far 
iis  Tuay  be  lu'cessary  to  show  that  the  undoubted  Just  intentions  of  Her 
MiiJ«'sty's  (lovernment  have  been  obeyed."'  Lord  Lyons,  on  the  IJOth  of 
,lune,  informed  Mr.  Seward  that  he  should  "lose  no  time  in  communi- 
cating this  request  to  Uer  Majesty's  (lovernment  and  to  the  j>overnor  of 
the  Bahamas."-  The  iuijuiry  4loes  not,  however,  seeju  to  have  been 
prosecuted,  or,  if  it  was,  the  llnited  States  have  not  been  advised  of  the 
result. 

In  ^Fay  the  Attorney  (leneral  caused  Locke  to  be.  arrested  for  the 
ort'ense committed  by  his  |)ersonation  of  the  master  of  the  ILinover,  and, 
upon  a  preliminary  «'xamination  of  thechar^jfe  before  a  police  magistrate, 
iil)0ut  the  20th  of  July,  it  appeared  that  tin;  business  at  the  customs  at 
Lonji  Cay  was  transacted  principally  by  Mr.  Kichard  Farrinj^ton,  who 
was  the  agent  or  consignee,  and  who,  when  examined  and  confronted 
by  the  defendant,  "could  not  swear  to  his  being  the  persou  who  repre- 
sented himself  as  *  *  *  the  master  of  the  schooner  *  *  *  but 
believed  him  to  be  the  person.'''  The  police  justice,  in  reporting  upon 
the  case,  at  the  request  of  the  colonial  secretary,  on  the  10th  of  March, 
1S(J4,  says  Farrington  "  wouhl''  not  swear  to  tlie  identity.*  After  this 
the  accused  was  let  to  bail,  in  the  sum  of  £100,  for  his  appearance  at 
court  lor  trial.*  He  was  trie<l  in  the  following  May  at  Nassau,  but  ac- 
(juitted,  as  the  evidence  was  not  sulhcient  to  satisfy  a  Jury,  selected 
troni  that  locality,  of  his  i«lentity.''  An  exatnination  of  the  testimony, 
however,  as  it  is  found  reported  in  the  British  Appendix,  Counter  Case, 
vol.  v,  pp.  188  et  seq.,  will, we  think,  hardly  satisfy  the  minds  of  the  Arbi- 
trators that  "  the  authorities  aiul  others  at  Long  Cay  were  ignorant 
that  the  Uanover  was  a  prize  to  the  Ketribution."  It  may,  however, 
show  why  it  was  that  the  intiuiry  suggested  by  Mr.  Seward  had  not 
ben  i)rosecuted. 

On  the  10th  of  February  the  American  brig  Emily  Fisher,  on  a  voyage 
from  Guantonomo,  Cuba,  to  Xew  York,  while  near  Castle  Island,  one  of 
the  Bahamas,  and  in  British  waters,  was  boarded  by  the  British  wreck- 
ing-schooner Emily  Adderley.  What  then  occurred  is  told  in  the  atli- 
ilavit  of  the  master  of  the  brig,  as  follows  : 

That  hiivin<;  (luestioiicd  the  captain  ol'  tlio  said  ves'^cl  [Emily  AddiMley]  closuly,  he 
was  told  that  tlii'ii^  wore  IK)  privateers,  oi  steamers,  in  the  jiassa^e ;  that  soon  after- 
ward the  schooner  hauled  down  the  IJritish  Hag  and  then  hoisted  it  aijain  ;  that  at  the 
same  tinu)  he  saw  a  schooner  coming  out  from  under  tiio  land,  hut  was  tcdd  that  she 
was  a  wrecking-schooner ;  that  soon  after  tiiis  said  schooner  came  nnder  the  lee  of  the 
hrig  and  sent  a  shot  across  her  hows,  at  the  same  tinn;  running  up  the  rebel  Hag ;  that 
she  then  sent  a  hoat  with  eight  men  well  armed  on  board,  and  ordered  him  on  board 
the  schooner  with  all  his  papers ;  that  on  arriving  on  board,  the  captain,  after  examin- 
ing bis  papers,  told  him  that  he  was  a  prize  to  the  confederate  schooner  Ktstrihntion, 
and  ordered  him  and  his  crew  to  be  pnt  into  irons,  which  was  done;  that  at  noon  the 
irons  were  removed  from  himself  and  the  first  otticer,  and  they  were  allowed  the  privi- 
lege of  the  cabin;  that  all  this  time  the  brig  was  working  up  nnder  the  land,  where 
tive  British  wrecking-schooners  were  anchored  ;  that  the  privateer  anchored  about  one 
anil  one-half  miles  from  the  shore,  when,  at  about  H  p.  m.,  a  wrecker's  boat  came  along- 
xiile  ;  that  after  some  conversation  with  the  crew  in  a  loinl  voice,  the  captain  of  the 
privateer  told  them  in  an  undertone  to  have  two  vessels  alongside  the  brig  that  night; 


I 


I    4 


'  Hrit.  App.,  Counter  Case,  vol.  v, 

-  Ibid. 

'  Ibid.,  p.  17.'). 


p.  170. 


Ibid.,  p.  177. 

Ibid. 

Il)id.,  p.  ISH. 


\\ 

142 


AiKii  Mi'.N  r  or   iiii;  i'mikh  siaihs. 


tiial  at  alittiit  Ti  p.  iii.  tlifv  ran  llw  liriu  ""  >ili"i'i'.  ami  Icn  nr  iwolvc  wreckers'  liii;ils 
went  alt)ii;;si<le  nl'  lier ;  (liat  at  (>  p.  in.  Mr.  (iiev,  (lie  niVicei'  iii  eliai';;e  ol"  .he  liri;;.  eaiiie 
on  lioai'il  llie  privateer,  jtinl  tlie  (lepiiiieiit  was  llieii  luld  lie  eoiilil  have  his  lioal  to  an 
on  lioai'il  the  iiri^  and  take  what  persnnal  piii|>ert,\  Mr.  I'liee  nii;rht  see  lit  to  ^i\  e  him : 
that  he  lonnd  two  wreekin;r-s(  inioners  aloni;side  and  alionl  one  hnndred  men  on  lioaid 
thelu'ifr;  that  ha\in^  taken  ihe  personal  ell'eet.s  into  the  hoal  he  landed  on  Aeklin's 
Island,  nnidi^  a  tent,  and  passed  the  ni;;ht  ;  that  the  next  day  the  w  icekers  were  still 
alont;side  :  that,  he  went  on  hoard  tin'  Inie;,  she  hein;;  then  alloat,  and  made  a  t'laiiii 
on  the  wreckers  Cor  the  Ini;;  ami  earyo.  He  was  told  hi'  eonid  not  have  her,  and  thai 
it' the  iinchor  was  lilted  t  he  prixaleer  would  sink  her;  lh:if  hetln'n  protested  a:;aiirsi 
removing;  any  nioii'  of  the  earjio,  as  the  Inijf  was  alloal  and  was  in  liritish  waters,  hm 
the  ))rotesl  was  disregarded  :  that  the  m-Nt  day  the  w  reekers  had  an  interview  wiili 
the  ea|itain  of  the  privateer,  and  at  I  p.  ni.  si'iil  him  wind  that  they  w  i-re  ;;'oini;  to  a 
port  of  entry  ami  that  the  di'pom'nl  and  his  crew  conlil  eii  with  them  :  that  at  '.'  p.  ni. 
the  privateer,  the  Itri;^,  and  all  the  wreekeis  started  for  hon;;  ('ay,  and  .arrived  thrre 
uhoiit  1^  p.  m.  Ihi!  same  day;  that  the  wrecki-r,  (m  1»  laiil  which  were  deponent,  and  his 
crews,  wa.s  .'inehored  nnder  the  eiins  of  t  he  privateer,  which  ki-pt  a  );iiard  all  iii;.jhl, 
while  Mr.  (Ji'ey  and  .Mr.  l'ri<'e,  two  ofliceis,  went  over  t'>  town  ;  that  on  .Monday,  'S.'ul, 
the  depom>nt  went  also  to  town,  and  after  making;  im|niry,  fonnd  that  lhi«  capiain  of 
the  privateer  wonld  luit  allow  him  to  ^o  on  hoard  the  hri,'^; ;  and  that  the  deponent 
was  told  1>y  tlu^  authorities  that  thmi;;!)  the  law  wonld  m>t  allow  the  ]n'ivateer  to 
tinn'li  the  hrijj;,  if  he  wished  to  do  so  they  had  mi  means  of  pre\  entinfj;  him  ;  that  the 
deponent  was  not  altle  to  olilain  po.ssession  of  the  hrie;  niitil  after  he  had  Itar^^aiiicil 
with  the  wreckers  to  pay  them  .'>•>  per  cent,  on  the  carj;(>,  and  Itlt.^  per  cent,  on  the  ves- 
sel, wiieii,  after  nnikiii;^  jililidjiv  it  of  his  Ueine;  the  master,  he  was  phu-ei!  in  possession 
liy  the  collector  and  went  on  hoard  ;  that  he  I'onml  the.  hnll,  spars,  and  ri^ro^jjicr  in  ^ood 
order,  hut  everything;  imivahle,  on  and  under  deck,  stolen  ;  that  on  the  next  day,  "Jltli, 
he  eomincm'ed  receiving;  sne;ar  from  tht^  wreckers,  and  tm  the  'i.")th  fonnd  on  hoard 
eijility-tl.iree  hojisheads,  live  tierces,  and  four  harreks,  the  halance  ot'carffo  havin<;  heen 
taken  ashore  by  the  wreckers;  that  the  wreckers  stove  hoj^sheads  and  harrtils,  ami 
pas.sed  the  sn;;arinto  their  hoats,  and  lamled  it  on  the  heacli ;  that  tln^  captain  of  the 
jnivateer  told  him,  the  depmient,  that-  he  had  }j;iven  the  carj;'o  to  lh4)  wreckers,  a.s  lie 
wanted  the  hri<;;  that  lie  was  jfoiiif*'  to  put  his  >!;nns  on  lioar<l  of  her,  iind  destroy  his 
schooner;  that  In'  fnither  told  the  deiionent  that  the  wrecker.s  wor<!  to  p.iy  him  soiiie- 
thiiifi  harnksome,  and  that  the  depmient  believes  they  did  ho;  that  tleponent  was 
oblijjed  to  aci'cpt  the  wrecker.s'  terms  at  the  port  of  entry,  because  the  bri;;  lay  under 
the  jjuns  of  the  ])rivateer.  and  the  authorities  <leclare<l  their  Inability  tc  lU'oteet  him, 
And  the  de]ionent  t'nrtln'r  says,  that  th(»  capture  of  his  vessel  and  th-  de-'rnction  of 
her  caifjo  were  bron<;ht  about  by  and  with  the  connivance  ami  assistam  t,f  the  caj)- 
tains  and  crews  of  the  Hritish  wreckini^-schooners,  ami  within  the  Juri.sdiction  of  tlio 
Hiitish  j{overnment,  where  he  was  entitled  to  itrotection,  but  could  not  (dttain  it  until 
he  lia<!  submitted  to  the  terms  of  tin*  wreckers,  all  of  whom  were  Hritish  subjects, 
through  whosi^  connivance  the  vessel  had  been  stramlod  and  the  car;;o  destroyed.' 

After  this,  (the  10th  of  February,)  and  before  the  <Sth  of  March,  the 
Jietribution  etiteretl  the  port  of  Nassau  as  an  insurgent  vessel  of  war.- 
The  "  speeittl  leave"  called  for  by  the  refiulations  of  the  liritish  Gov- 
ernment, under  date  of  .lanuiiry  31st,  ISd'J.'  seems  never  to  have  boeii 
askeil  for  or  fti'iU't^'d.  Her  coininander  was  not  even  etdled  upon  for 
his  coinmission.  All  that  occurred  upon  her  arrival  is  thus  stated  by 
the  pilot : 

She  had  a  small  j^nn  on  deck.  The  cai»tain  told  nio  he  was  from  Lon<(  Cay,  I  asked 
the  captain  where  he  was  fioni.  He  answered,  "LonjjCay."  I  saw  from  the  look. el 
the  vessel  and  the  ai>pearance  of  the  crew,  their  clothin;^.  that  she  was  likely  to  be  an 
armed  vessel.  1  then  asked  him  if  she  was  a  vessel  of  war.  1  beiiged  him  to  excuse 
my  being  so  particular,  as  1  was  instructed  to  do  so,  to  put  such  (luestious.  Ho  tolil 
me  she  was  an  armed  vessel."  ^ 

On  the  3d  of  March,  which  was  eij.;ht  days  before  the  comi)laint  was 
made  to  the  Governor  on  account  of  the  capture  of  the  Hanover,  and 
two  weeks  after  the  transactions  with  the  l^uiily  Fisher,  in  which  the 
"  wrecking-schooner  Emily  Adderley  "  took  so  prominent  a  part,  Ileiu.y 
Adderley  &  Co.  sold,  or  pretended  to  sell,  the  Ketribution,  in  the  port 
of  Nassau,  at  public  sale,  to  C.  K.  I'erpall  &  Co.,  for  £250.  On  the  -Utb 


Jirit.  App.,  Counter  Case,  vol.  v,  ]).  190. 
Brit.  App.,  Counter  Case,  vol.  v,  p.  llHi. 


^  .i«/c,p.  290. 

■'  Am.  App.  ,vol.  vi.  i». 


r.ie. 


THi:    TALLAIIAMSKK. 


14:j 


of  t\\{'  siitnc  iiioiitli,  IV'i'piill  «S:  <'<>.  sold  Ium'  lor  the  same  iiiiioiint  t<» 
Thotiiiis  Stciui,  aii<l  lie,  oil  tlie  lOtli  of  April,  ohtiiiiMMJ  for  lici  a  register 
iisii  iSritisli  ship.'  rrcvioiis  to  lier  sale  she  was  eoiMleiiiiied  hy  ii  hoard 
of  survey,-  IVrpall,  the  ostensible  piirehaser,  heiii;;  one  of  tlie  hoard.' 


Til  K    TA  lil.A  II  A  SS  l)  l). 

It,  will  he  reiueiiiher«;d  hy  the  Arhitralors  that,  when  present  in;;' for 
their  consideration  th(^  fuets  eonneeted  with  the  (^laiiii  of  the 

United  States  for  acts  coinniitte«l  hy  th<^  Sheiiandouh,  we       "'" 

had  occasion  to  call  their  attention  to  a  letter  written  hy  the  insnrj;'ent 
Se(!retary  of  the  Navy  to  u  Mr.  Charles  (ireeii.  heariii;^'  date  as  early  as 
the  1st  of  July,  ISlM,  in  which,  I'efeirin;;'  to  the  purchase  of  vessels  to 
h(^  used  as  transports,  an«l  the  shipment  of  arms,  t!v:c.,  from  i')ii<;land  for 
the  use  of  the  insnrj;ents,  it  was  said :  "It  is  probable  that,  beinjj:  a 
Ihitisli  subject,  yon  mijjlit  secure  the  shipment  under  Ilritish  cohns."' 
Less  than  lifty  days  after  the  datt;  of  that  letter,  .Mr.  Adams'  inaddress- 
h\ii  Karl  Itnssell  upon  the  snbject  of  the  ''transport  JJermnda,  and  th(^ 
information  he  had  obtaiiie<l  as  the  ground  for  an  application  fin-  a 
prompt  ami  eltective  investifj^ation  of  the  tinth  of  the  allejjafions  whilst 
there  is  time,"'  called  his  lordslii|>"s  attention  to  the  fact  that  "  she  is 
stated  to  carry  Hiif^lish  cohns."''  I'^roin  that  time  nntil  the  eml  of  the 
rebellion,  the  fact  that  the  blockade-ranniii}*',  and  the  transportation  of 
articles  contraband  of  war,  tor  the  use  of  the  insnr{,'«'nts,  was  carried  on, 
almost  exclusively,  nnder  the  in()tection  of  the  I'hiKlish  tla;j,  became 
very  frecpiently  the  snbject  of  direct  coini»laint  by  .Mr.  Adams  to  ICarl 
lUissell. 

The  correspondence  npon  this  snbject  will  be  fonnd  collected  in  vol- 
ninc  1  of  the  American  Appendix,  paj;es  710  to  7.S5,  and  it  shows  con- 
clusively that  the-  insurj^ent  (Jovernment  wasin  the  constant  practi<:e  of 
])rocnrin}j  a  JJritish  rcjjfistry,  and  of  usinj;'  the  British  thiff,  for  all  or 
nearly  all  transi)orts.  We  also  claim  that  it  shov..s  that  this  practice 
was  tolerated  by  (In^at  Ihitain. 

As  late  as  the  liOth  of  January,  1S(m,  the  Lientenant-dovernor  of  r)er- 
muda,  in  eommuiiieatin}»'  with  the  home  j^'overnment,  took  occasion  to 
say:  "1  would  further  state  that  the  Chameleon's  rej^ister  is  Confederate 
States.  Ilence  there  is  another  lejj^al  (piestion  to  which  I  should  be  glad 
to  have  an  answer,  viz,  is  a  merchant-shii>,  sailin;^'  nnder  the  tlag  of,  and 
registered  by,  an  unreeogni/ed  nation,  to  be  i>:ceive<l  in  our  ])orts  on  the 
same  terms  as  a  trader  nnder  a  recogniz«'d  Hag?  I  find  that  this  is  not 
the  first  instance  of  a  ship  trading  liither  with  a  confederate  legister, 
tliongh  most  of  the  blocka<le-runners  are  IJritish."'' 

On  the  .'3l8t  of  March,  18()4,  the  Consul  of  the  United  States  at  London 
informed  Mr.  Seward  that  "on  the  Thames  their  activity  in  forwarding 
all  enterprises  in  aid  of  the  Confederacy  is  kept  up  with  nearly  as  mncli 
vigor  as  on  the  Clyde.  Another  double  screw,  called  the  Atlanta,  similar 
in  most  respects  to  those  which  have  preceded  her,  has  her  sails  bent, 
coals  and  supplies  in,  appears  ([iiitxi  ready  to  leave."  ^ 


'  Hiit.  App.  Counter  Case,  vol.  v,  p.  IW. 
■'  Il.ia.,  p.  llMi. 
'  Ibid.,  p.  lyi. 
'  Jm/c,  p.  ^36. 


•>    inU,  i».  'ittH. 

"  Brit.  App.,  Counter  Ca.se,  vol.  v,  i>.  151. 

'  Am.  App.,  vol.  vii,  p.  727. 


m 


!l 


I 


i     t 


144 


ARGl'MKNT    OF    THE    I'MTEI)    STATES. 


P  ■■■ 
ri  i 


t«-i1 


l< 


m 


W 


Agaiu,  on  the  1st  of  April,  ho  says:  "  The  doiibU*  screw  is  cjiUed  tlio 
Athinta.  Her  sails  are  l)eiJt,  and  she  appears  quite  ready  for  sea.  1 
consider  tlie  Edith  and  her  the  finest  ships  of  i:he  \vhole  batch  of  double 
screws." '  * 

On  the  8th  of  Ai)ril,  it  was  reported  to  the  Consul  that  "this  double 
screw  [the  Atlanta]  I'^ft  the  docks  on  Sun«biy  last,  adjusted  compasses 
same  day,  aiul  sailed  on  the  4th  of  April  from  (lr«'e»ihithe,  an<l  arrived 
at  Falmouth  on  the  next  day.  She  cleared  for  IJermuda  in  ballast, 
(coal.)"^ 

On  the  L'Oth  she  arrived  in  15ermuda,  niaVinj;  the  passajje  in  eleven 
days.  The  Consul  at  nerninda  wiys,  in  his  report  to  Mr.  Seward  :  "This 
vessel  is  undoubtedly  faster  than  any  heretofore  here.  She  is  to  be  under 
the  command  of  Caj»tain  ITorner,  formerly  of  the  Flora,  and  recently  in 
the  Index.     He  is  an  Englishman  l)y  birth.''' 

Afjain,  on  the  .'{Oth  of  May,  he  says:  "The  following  steamers  [six 
in  allj  ij.tve  left  here  to  run  the  blockade,  ])robablv  for  Wilmington. 
*     *     *    May  24,  Atlanta,  Horner,  master.'' 

On  the  0th  of  Au just  the  Atlanta,  with  her  name  chanjfed  to  the 
Tallahass'j,  left  Wilmin.i;:ton,  North  Carolina,  armed  as  a  vessel  of  war, 
and  ran  ihe  blocka<le  of  that  port.  On  the  18th  of  the  same  month  she 
arrived  at  'Halifax,  Nova  Scotia,  for  coal,  liavinj;,  in  the  me  in  time, 
destroyed  a  larfje  number  of  vessels.^  She  remained  in  port  about  forty 
hours,  and,  having-  supplied  herself  with  coal  for  her  retuin,  sailed  on 
the  10th,  and  again  reached  Wilmington  througli  the  blockade  on  the 
L*Gth.^ 

The  United  States,  having  had  reason  to  beliex  e  she  had  been  arr.ied 
at  Bermuda,  comi)laine«l  tc  the  (lovernment  of  Great  JJritain.  The 
matter  Mas  refened  to  the  authorities  at  IJermudju  an<l  on  the  14th  of 
Noveniber,  1864,  the  Jiieutenant-Oovernor  reported  : 

Tlio  Atlanta  wns  report*'*!  ln-ro  from  Wiliiiii.fiton,  with  i;trjf»>,  on  tin-  (ilh  of  List 
.Tuly,  iunl  sIk;  was  oli'Micd  on  tiic  Uth  of  .Tnly  for  Nawsuii,  witli  ii  rartfo  of  sii>«'ii  liuii- 
tlrt'd  ca«es  of  preserved  nieatM,  and  lifty  easks  of  bai^on ;  she  left,  under  liriti.sh  eenifi 
rate  of  re;:;i.Htrv,  and  earryi'-  ■  l{rili->ii  nierehandise.  All  the  retiuisites  to  a  rej;iil;n 
c'leara,nt'e  were  fnllilled.  it  whe  went  to  \Vilniiii;L!;ton,  as  is  jtroliably  the  ease,  notwitli- 
Htandinn  her  haviii};  eleariid  for  Nassau,  slw  would  have  rfaehcd  that  jtort  about  tin 
ir»lh  or  Kith  of  July,  hetweeu  wliieh  dates  and  the  1st  of  Aujijust  she  probably  took  in 
her  armament.  K\ciythiuy,-,  except  din't  t  te.stimony,  is  aj^ainst  the  belief  that  tin 
Tallahassee  was  armed  at  ISerinuda.' 

The  Tallahassee  remained  in  commission  n"til  the  l.'dh  of  l^ecembcr. 
18(}4,' and  crnisi'd  for  a  short  time  olf  the  c«;..st,  in  tlu^  early  part  of 
Xovend.)er,  under  the  nsime  of  tlie  Olustee.  On  this  cruise  she  made  u 
few  captures,  and  returned  to  AVilmiiigtoii.' 

After  her  arniiunenr  was  removed  she  was  loaded  with  cotton,  and, 
on  the  UTth  of  December,  iindei-  the  nam«'  of  the  Chameleon,  lel't  Wil 
mington,  for  lli'mioda.  At  that  port  she  wa.s  htiided  with  a  return 
cargo  for  Wilmington,  but,  being  unable  to  run  tiie  ItiMckade,  pro 
ceeded  ti>  Nassau.  From  there  she  attempt<'<l  t«t  get  Intt*  i'harlestoii. 
but,  being  prevented  in  this,  reti  ue<l  to  llernuid;i :  and  from  their 
went  to  ld\(M']»ool,  con^igne<l 


io  Fra'er,  'i'reidiolm  vS,;  Co. 


'  Am. 

•M»l'- 

,  vol. 

V 

ii. 

!>• 

T-27. 

-  ll)id, 

'  Am. 

A  pp. 

,    NOI, 

,  > 

ii. 

I' 

.  r-i.*-. 

'  Itrit.  .\pp.  Counte!' Case,  vol.  y,  )i.   l.'n 
■  .\m.  Api>.,  \ol.  vi,  p.  "t'-li't. 
•  Il.id..  p.  7;?:!. 

Ibit.  App.  I'ltuuter  ( 'jise,  \ol.  \,  p,  Ul.  Ibit.  Ajip.  Counter  Case,  vol.  v.  p   Itil. 

Am.  App.    sol.  v  i,  ]i.  TitJ, 


THE    CHICKAMAUGA. 


145 


The  OiickutiinuRn. 


TRIE    CHICKAMAUGA. 

This  vessel  was  formerly  the  blockadernniier  Edith.  The  consul  of 
the  United  States  at  London,  in  writing  Mr.  Seward  on  the 
11th  of  ]\[arch,  1804,  said :  "  The  steamer  i^dith,  the  hist 
double  serew  coini)leted,  left  ou  Wednesday  last  for  Bermuda.  The 
Edith  makes  the  ninth  double-screw  steamer  which  has  been  built  for 
the  rebel  service  in  this  port."  ^  She  was  employed  as  a  blo(!kade-runner, 
and  as  su<;h  was  once  or  twice  at  Bermuda.  Ilavinj?  be(ni  armed  at 
WilniingtOM  she  ran  through  the  blo(!kade  on  the  28th  of  October,  1804,  as 
a  cruiser,  and  reached  Bermuda  in  that  cai)acity  on  the  0th  of  November. 
Here  she  was  supplied  with  coal  from  the  bark  Pleiades,  and,  after  re- 
maining nine  days,  got  under  way,  and  returned  to  VV^ilmington,  where 
she  arrived  on  the  19th  of  Noveml  (•»•.  Her  ariuament  was  then  taken 
out  of  her,  and  she  was  reduced  to  her  original  condition  as  a  trans- 
port. 


10  0 


'  Am.  App.,  vol.  vi,  p.  723. 


•    i    •*  -      !        +  1 


ii, 

XI.-CONSIDERATION  OF  THE  DUTIES  OF  GREAT  BRITAIN,  AS 
ESTABLISHED  AND  RECOGNIZED  BY  THE  TREATY,  IN  REGARD 
TO  THE  OFFENDING  VESSELS,  AND  ITS  FAILURE  TO  FULFILL 
THEM.  AS  TO  EACH  OF  SAID  VESSELS. 


We  arc  now  nrepared  for  a  deflnite  application  of  the  law  and  the 
facts,  under  which  the  determination  of  the  Tribunal  is  to  be  made,  to  the 
question  of  the  dutie.^'  of  CJreat  IJritain,  in  the  premises  of  the  Arbitra- 
tion, and  its  performance  thereof  or  failure  therein. 

The  ample  disc  ussions  of  pertinent  questions  and  principles  of  public 
,ind  municipal  huv,  to  be  found  in  the  Cases  and  Counter  Cases  of  the 
two  Governments,  and  subjected  to  comment  in  an  earlier  part  of  this 
Argument,  it  is  not  our  purpose  here  to  repeat  or  renew.  We  shall 
better  observe  the  re<piirements  of  the  Arj^ument  at  this  staj'e  of  it,  by 
a  Vnief  statement  of  the  propositions  which  siiouhl  assist  and  control  the 
judgment  of  the  Arbitrators  in  deciding  the  main  issue  of  fact  on  which 
their  award  is  to  turn,  that  is  to  say,  the  inculpation  or  the  exculpatiou 
of  Great  liritain  in  the  matter  of  the  otl'ending  vessels. 


P  K  O  P  O  S  I  T  1  O  N  S    OF    LAW. 
MEASURE  OF  INTEKNATIONAL  DUTY. 

I.  The  Three  Kules  of  the  Treaty  furnish  the  imperative  law  as  to  the 
R„i<.nfti„  tre,ty  obligations  of  Great  Britain  in  respect  of  each  of  the  vessels 
mp.rat.^^.  wlijcli  Is  brouglit  under  review.    The  monuMit  that  it  appears 

that  a  vessel  is,  in  itself,  within  the  descrii)tion  of  the  tirst  article  of  the 
Treaty,  as  being  one  of  "the  several  vessels  which  have  given  rise  to 
the  claims  generically  known  as  the  'Alabama  Claims,'"  it  becomes  a 
subject  to  wliich  the  three  rules  are  applicable. 

n.  This  i>rimary  iuipiiry  of  fact,  which  simply  determines  that  the 
A..iM,,i,m,„i  thn  JnyisiUvtion  of  the  Tribunal  embraces  the  vessel,  is  followed, 
''""  '"^••-  necessarily,  by  the  further  incpiiry  of  fact,  whether  or  no  the 

vessel,  in  its  circumstances,  falls  within  the  predicament  of  either  tite 
first  clause  or  the  se(!ond  (tlause  of  the  first  rule.  If  it  does,  the  Tribunal 
has  further  to  consider  whether  Great  Britain  has  used,  in  regard  to  said 
vessel,  the  "due  diligence"  which  is  insisted  upon  by  that  rule,  and  the 
failure  in  which  inculpates  Great  Britain,  and  exposes  it  to  the  condem- 
nation of  responsibility  and  reparation  therefor  to  the  United  States. 

III.  Whatever  may  be  the  scope  and  etticacy  of  the  second  Uule,  and 
of  the  thinl  Rule,  in  future  or  in  general,  for  the  purposes  of 
.erm»Mm7t''h 'r'.i  tlic  prcscut  Arbitratlou,  the  subjects  to  which  either  of  them 
""'"  can  be  applied,  in  reference  to  the  issue  of  the  inculpation 

or  exculpation  of  Great  Britain,  nnist  be  embraced  within  the  limitation 
of  the  first  article  of  the  Treaty,  and  so,  conne<;ted  with  s()me  or  one  of 
"the  several  vessels  which  have  given  rise  to  the  claims  generically 
known  as  the  '  Alabauni  Claims.'"    But  in  regard  to  any  such  vessel,  the 


PROPOSITIONS   OF   LAW. 


147 


general  injunctions  of  these  two  Rules  furnish,  in  their  violation,  a  ground 
for  the  inculpation  of  Great  Britain,  and  its  condemnation  to  responsi- 
bility and  reparation  therefor  to  the  United  States. 

IV.  It  is  not  at  all  material  or  valuable,  in  its  bearinj;  upon  the  de- 
liberations or  award  of  the  Tribunal,  to  iuijuire  whether  the 
obli{2;iitions  of  duty  laid  down  in  the  Tlnee  Rules  are  com-  intlllii.-  l!.w «™hV« 
inensurate  with  the  obli<;ations  imposed  by  the  "i»rin(!iples  '""""'"*■ 

of  International  Law  which  were  in  force  at  the  time  when  the  claims 
mentioned  in  Article  I  [of  the  Treaty  J  arose."  These  Rules  constitute  the 
LAW  of  this  controvei'sy  atid  of  this  Tribunal  in  its  jurisdiction  of  it,  by 
force  of  the  twofold  declaration,  (1)  that,  "in  deciding-  the  matters  sub- 
mitted to  the  Arbitrators,  they  shall  be  governed"  by  them,  and  (2)  that 
"in  deciding  the  questions  between  the  two  countries  arising  out  of 
those  claims,  the  Arbitrators  should  assume  that  Her  Msijesty's  Govern- 
ment had  undertaken  to  act  upon  the  principles  set  forth  in  these  Rules." 

V.  The  true  force  of  the  subordinate  provision  that,  besides  the  Rules, 
"  such  principles  of  Inlernational  Law,  not  inconsistentthere- 

with,  as  the  Arbitrators  shall  determine  to  have  been  appli-  wi,','!^^i.'m'l'I"la■^ 
cable  to  the  case,"  sliall  govern  them  in  their  decision,  is, 
necessarily,  to  introduce  from  the  general  doctrines  of  International  Law 
whatever  may  corroborate  or  increase  the  vigor  of  the  Rules,  and  their 
scope  and  etliciency,  but  to  admit  nothing,  from  such  general  doctrines, 
in  reduction  or  disparagement  of  the  Rules. 

VI.  An  assent  to  these  indisputable  pro[)ositions  disposes  of  a  very 
considerable  part  of  the  more  remote  argument  of  the  Case  and  Counter 
Case  of  Her  Majesty's  (iovernment. 

(a)  The  duties  in  respect  of  which  the  conduct  of  Great  Britain,  in 
fiillilling  or  failing  to  fuUill  the  same,  is  to  be  judged  by  the  ihf  ohii«,tM.n  ..r 
Tribunal,  are,  by  the  terms  of  the  Treaty,  authoritatively  ;i.7v';.\h!'''r'u'i.!:\;'H 

assigned  as  duties  of  Great  Britain  towards  the   United  "•""""'•«'■"• - 

States,  of  inter!iational  obligation.  Not  oidy  does  the  Treaty  declare 
that  Great  Britain  was  '•^  bound"  to  the  fultillment  of  these  duties,  but 
it  further  declares  that  "  the  Arbitrators  should  assume  that  Uer  Majes- 
tjfs  Government  had  nndertaken  to  act'''  in  obedience  to  that  obligation. 
All  si)eculations,  therefore,  of  a  legal  or  practical  character,  presented 
in  the  Case  or  Counter  Case,  and  turning  upon  the  question  of  the 
duties  here  under  judgment  being  duties  of  (rreat  Britain  tojts  own 
alws  and  its  own  subjects,  and  its  accountability  to  the  United  States 
being  only  secondary  and  of  comity,  seem  unprofitable  to  the  present 
inquiry. 

(/>)  The  efforts  of  the  Case  and  Counter  (Jase  to  ascribe  to,  or  appor- 
tion among,  the  various  departments  of  national  authoritv, 
legislative,  judu;nu,  and  executive,  principal  or  subordinate,  «awt.;\  i.y  int-rr,,i 
the  true  measure  of  oVdigatioii  ami  responsibility,  and  of  .^'r,'i'l!'r','t,'"h'i..'!''M," 
fault  or  failure,  in  the  premises,  as  among  themselves,  seem 
wholly  valueless.  If  tlie  sum  of  the  obligations  of  Great  Britain  to  the 
United  States  was  not  performed,  the  Nation  is  in  fault,  wherever,  in 
the  functions  of  the  state  or  in  their  exercise,  the  failure  in  duty  arose. 

(<)  So,  too,  the  particular  institutions  or  habits  of  the  j)eoi>le  of  Great 
Britain,  or  the  motives  or  policy  of  its(iovernuient  in  respect 
ot  commercial  freedom,  unrestricted  activity,  maxims  or  t.  .„nrh..lMl>nltl,.■ 
nlethod8  of  judii;ial  procedure,  limitations  of  prerogative,  '"""'"'""" 
and  similar  internal  arrangements  of  people  and  Government,  cease  to 
have  any  etticacy  in  determining  the  Judgment  of  this  Tribunal  upon  the 
fultillment  <»f,  or  default  in,  international  duty.  Domestic  liberty,  how- 
ever valuable  to,  and  iu,  u  state,  is  not  a  warrant  for  iuteruutioual 


P 


> 


I- 
.1 


^f 


148 


ARGUMENT    OF    THE    UNITED   STATES. 


!•''■(    '      f 


$' 

■  ij 

li  '.■", 

■ 

m  i 


: 


lili'iil    r.  rilain 

Soli.'ihl-'.  ii|tl>rti|ni;ilf. 

tf'    pn'^ervu  itfi  lu-ii- 
ti-.illty. 


license;  nor  can  its  advantages  be  cherished  by  (lovernment  or  i)eoi)le 
at  the  cost  of  Ibreiyn  nations.  lndee<l,  when  a  special  obli}»ation  or 
])articnlar  motive  induces,  and  in  some  sense  jnstiHes,  i'aihire  in  inter- 
national duty,  the  offendinj;'  nation  assumes  the  necessary  amends  and 
reparatnai  to  tlie  foreign  state.  A  notable  instance  of  this  is  found  in 
the  course  of  the  ITnited  States  toward  (Jreat  Jiritain,  when  the  former 
had  failed  in  what  they  admitted  to  be  their  international  «lnty  to  jire- 
vent  the  outfit  of  French  privateers,  by  reason  of  certain  special  rela- 
tions to  France.  Compensation  to  (ireat  Jiritain  for  injuries  by  the 
offendinj:'  ci'uisers  was  conceded. 

VII.  The  i>recedin<;'  obser\ations  leave  the  allirmative  statement  of 
the  (d)li}>ations  ri-stinj;  upon  (Wvat  Ikitain  to  secure  the  fultillment  of 
this  international  duty  to  the  United  States,  free  from  diHiculty. 

{a)  These  obligations  recjuired  that  all  seasonaui.e,  APPUoruTAiK, 
and  ADEi^iATE  means  to  the  accomplishment  of  the  end 
projxised,  shoidd  be  applied  and  kejjt  in  operation  byCJreat 
liritain,  from  the  tirst  occasion  for  their  exhibition  until  the 
Jiecessity  was  over. 

(b)  As  the  situation  calling  for  the  discharge  of  these  oblijjfations  on 
w  h,,  h  MM  an.  the  part  of  (Ireat  Britain  was  not  sprun<>'  upon  it  unawares, 
Sva'i'hir'!;.';,,,,.!;','',"  ^'it  was  created  by  the  C^ueen's  I'roclamation,  (a  measure 
re.,u.re>i.  ^^  }^fj|f^>  a<lopted  after  deliberation  in  its  own  (lo\t:?nment. 

and  uiMHi  (ionference  with  another  great  European  power,)  the  means  [a 
meet  the  duties  of  the  proclaimed  neutrality  should,  at  once,  have  been 
fouiHl  at  the  service  of  the  Ciovernment,  or  juomptly  prej)ared.  if  deti- 
cient,  that  no  space  might  intervene  between  the  deliberate  assnnijjtion 
of  these  duties  by  the  (Jovernment,  and  a  complete  accession  of  i»o\vei 
to  fultill  then). 

((•)  The  dangers  and  ditliculties  that  would  attend  and  embarrass  the 
(iovernment  in  the  fulfillnu'nt  ot'theseduties,  Irom  the  actual 
»i!h''mM,m',''i's'\ln  dlspositioii  of  its  own  people,  and  the  urgent  needs  of  the 
fi,VTH!nn'V"i'','nn'u  licbcl  bcl I igcrcn ts,  constituted  necessary  elements  in  tlie 
estimate  of  the  actual  duties  tln^  (lovernment  must  be  pre- 
l)ared  to  fultill,  and  in  the  forecast  of  the  nu'ans  to  meet  and  cope  witli 
sucli  dangers  and  ilitticidties.  The  immense  temjjtation  to  Hritish  in 
terests  to  absorb  the  share  of  the  commerce  of  the  w  orhl,  which  its  gi  ea! 
competitor  jiossessed,  the  immense  temj)tation  to  theliebel  belligerents 
to  allure  these  interests  of  the  Ibitish  people  to  an  actual  comi)licity  in 
the  preparation  and  maintenance  of  maritime  hostiliti«'s,  and,  liiially.  to 
drag  the  llritish  (lovernment  into  foiinal  war  against  the  I'nited  States. 
Avere  within  the  immediate  field  of  obser\ation  t<i  Her  Majesty's  Minis- 
ters, and  nnule  a  principal  feature  of  th<'  situation  tln'y  had  producetl. 
and  were  re(piire(l  to  control.  The  Ihitish  ('as«' iMid  Counter  Case  hnvo 
given  prominence  to  these  considerations,  in  de|»recation  of  the  }w\)i- 
ment  of  thisTribuiml  against  (Ireat  Ibitain  for  the  actual  incompeteney 
with  which  it  met  the  duties  of  the  situation.  They  tend  rather  to  a 
cond4'mnation,in  advance,  for  negligence  ol  Great  Jiritain,  thus  advised 
of  the  duty  imposed  upon  it,  an<l  failing  to  meet  it  successfully. 

(r/)  The  aptitude  or  sufliciency  of  the  system  or  statt"(»f  public  oflieors 
at  the  command  of  the  (lovernment  for  the  reiiuired  serviee 
of  this  international  duty  to  the  Uiuted  States ;  the  pos 
session  of  Executive  power  to  coiuluct  the  duties  of  the  situation  <>t 
neutrality  which  it  had  been  competent  to  create,  or  the  need  of  recoarse 
to  Parliament  to  impart  it ;  the  force  and  value  of  tlu^  punitive  or  re 
l)re.s8ive  legislation  designed  to  deter  the  subjects  from  complicity  in  the 
liebel  hostilities,  in  violation  of  the  Government's  duties  to  i)revent  such 


Othir  ililniiitH  I 
he  oniiMiltreil. 


PROPOSITIONS    OF    LAW 


149 


•tUill 

tlu' 

tlic 

prc- 

witli 

in- 

frciU 

iciits 

[>■  ill 

V.  to 
atcs. 
iiiis- 

ICt'll. 

I  live 
U(l;i- 

tomy 

to  a 

vised 

icors 
■ivico 
*  pos 
oil  1)1 

>r  n' 

II  till' 
such 


complicity; — all  these  were  to  be  dealt  with  as  practical  elements  in  the 
demands  upon  the  (ioverninent  in  fulfillinent  of  its  duties,  and  were  to 
be  met  by  well-contrived  and  well-api)lied  resoni'ees  of  competent  scope 
and  viji'or. 

In  view,  then,  of  all  these  considerations,  from  the  issue  of  tiieCJneeu's 
PnK'lamation  to  the  close  of  tli<'  rebellion,  the  llnles  of  the  Treaty  of 
Washington  exact  from  Great  Uritain  the  preparation  and  the  applica- 
tion, in  prevention  of  the  injuries  of  which  the  United  States  now  com- 
plain, of  xcasouahle,  upitroprintv,  and  adequate  means  to  accomplish  that 
result. 


Tin:  MKANS  OF  FULFILLING  IN ll^K'NATIONAL  Dl  TY  POSSFSSi:!)  HY  OIJEAT 

I'.mTAIX. 

I.  That  (Jreat  Britain  jjossessed  all  the  means  which  belong  to  sover- 
eigntv,  in  their  nature,  and.  in  a  measure,  of  energv  ami 

elhcacy,  suitable  to  her  proud  positn)n   among  the  great    .nniMt   ,»,s,m-,m 
Powers  of  the  world,  to  accomplish  whatever  the  will  of  the  !''.!  ^"aTlX-l'l'Z 

.  41111  I  1  11.11  iiinr-i- 111  ili-lioii. 

Government  should  decree,  has  never  been  doubti'd  by  any 
i)therPower,lriendly  or  hostile.  Tlu' pages  oft  he  iiritish  Case  and  Counter 
Case  devoted  to  suggestions  to  the  contrary,  will  not  <listnrb  this  opin- 
ion of  the  world,  and  (ireat  Jbitain,  for  the  purposes  of  this  Arbitration 
and  the  Judgment  of  the  Tribunal,  must  remain  the  powerful  Nation 
which  it  is,  with  the  admiiable  (rovernment  which  it  possesses  in  all 
ether  relations.  Wiiatever  infirmity  shall  have  shown  itself  in  the  con- 
duct of  the  (lOvernnuMit,  in  th«>  jtremiscs  of  this  incpiiiy,  it  is  attributa- 
ble sohdy  to  ilebility  of  purpose  or  administration,  not  to  detect  of  power. 

II.  The  whole  body  of  the  powers  suitable  to  the  regulation  and  main- 
tenance of  the  relations  of  (Ireat  Ibitain,  ad  extra,  to  other  n,.. i.r,.,<,6«t.ve  r 
nations,  is  lodged  in  the  Pn'rogat've  of  the  Crown.  The  in-  '"""""- 
tercoursi^  of  jx'ace,  th<'  declarati(  n  and  |)rosecution  of  war,  the  ])rocla- 
mation  and  observance  of  neutrality,  (which  last  is  but  a  division  of  the 
};eiieral  subject  of  international  relations  in  time  of  war,)  are  all,  under  the 
l>ritish  Constitution,  administeicd  by  the  Iloyal  Preiogative.  Whether, 
or  to  what  extent,  the  ('omnion  or  the  statute  law  of  Kngland  may  or 
should  punish,  by  fines  or  forfeitures,  or  i»ersonal  inflictions,  acts  of  the 
su!»jects  that  thwart  or  embarrass  the  conduct  l>y  the  (.'lown  of  these 
i.ttrrnal  relations  of  the  nation,  aie  (pu'stions  which  belong  to  domestic 
policy.  Foreign  mititms  have  a  right  to  recpiire  that  the  relations  of 
tireat  Britain  with  them  shall  be  suitably  administ<'red,  and  defective 
domestic  laws,  or  their  defective  execution,  are  ncd  accepted,  by  the 
law  of  mitious,  as  an  answer  for  violations  ».f  international  dut,v. 

We  refer  to  the  debates  in  Parliament  upon  the  Fon'ign  KidistnuMit 
Dili  in  1KP.>,  and  on  tin'  proposition  to  r<'peal  the  Act  in  IM'.'),  ami  to  the 
debate  upon  the  Foreign  Fnlistment  IMll  of  ISTO,  (as  cited  in  Note  li  of 
tlie  Appentlix  to  this  Argument.)  as  a  (dear  «'xhil)ition  oi'  this  do<'trine  of 
the  lU'itish  Constitution,  in  the  distinction  between  the  executive  power 
to  prerent  violations  of  international  duty  by  the  Nation,  thnmgli  the 
i'>:i.'  of  individuals,  ami  the  finnitire  legislation  in  aid  of  sjich  power, 
which  needed  to  i)roeeed  from  Parliament. 


W 


<■!  rei'er,  also,  to  the  a(*tnal  exercise  of  this  Kxecutive  jiower  by  the 


(H)vennnen! of  (Ireat  Uritain,  without  any  enabling  act  of 
I'arliament  to  that  end,  in  various  public  acts  in  the  c«)nrse 
of  the  transaciioiis  now  iu  judgment  before  the  Tribunal : 


escrr  iiiP  dnritiH 


the  relielliuii. 


f 


150 


ARGUMENT   OF   THE   UNITED   STATES. 


I  ' 


1.  The  Queen's  Proclamation  of  Neutrality,  May  13,  1861.' 

2.  Tlie  regulations  issued  by  the  Government  ot  Uer  Britanic  Majesty 
in  refiard  to  the  reception  of  cruisers  and  their  prizes  in  the  ports  of  the 
Empire,  June  1,  1801 ;  June  2, 180;V 

3.  The  Executive  orders  to  detain  the  Alal)ama  at  Queenstown  and 
Nassau,  Aujiust  2,  18(i2.=' 

4.  The  Executive  orders  to  detain  the  Florida  at  Nassau,  August  2, 
1802.^ 

0.  The  Executive  orders  to  detain  the  rams  at  Liverpool,  October  7, 
18(5;J.-' 

(».  The  debate  and  vote  in  Parliament  .justifyinji'  the  detention  of  the 
rams  bv  the  (jlovernment  "  on  their  own  responsibility,"  February  2,!, 
18()2.'' 

7.  The  linal  decision  of  Her  Majesty's  Government  in  regard  to  the 
Tuscaloosa,  as  expressed  by  the  Duke  of  Newcastle  to  Governor  Wood 
house,  in  the  following  words: 

If  the  result  of  tlit'Sf  iiH|iiiii('s  liiul  been  to  prov*'  that  the  vcssd  was  really  an  uii- 
(•(iiiilcmiK'd  iirizc,  brought  into  Uritinh  waters  in  vi(i!atit)n  of  Her  Majesty's  ordeis 
made  for  the  iniiposij  of  iiiaintaiiiiufi;  hi!r  neutrality,  1  consider  that  the  nioile  of  iini- 
eeedinjj  in  sneli  (Mrciunstaneevs  most  consistent  with  Vb^r  Majesty's  dij^nity,  and  niost 
lirojter  for  the  vindieation  of  her  territorial  rijthts,  would  have  been  to  ]>rohiliit  the 
exercise  of  any  further  control  over  tlie  Tuscaloosa  by  the  cajitors.  and  to  retain  that 
vi'ssei  \uider  llcr  Majesty's  control  and  jurisdiction,  until  properly  reclaimed  by  her 
oriyinul  owners, — November  4,  Ibtil?.' 

8.  The  Executive  order  that,  "for  the  future,  no  ship  of  war  belongiiiji 
to  either  ot  the  belligerent  powers  of  North  America  shall  be  allowed 
to  enter  or  to  remain  or  to  be  in  any  of  Her  JNIajesty's  ports  ibr  the  pur- 
pose of  being  dismantled  or  sold,'"'  September  8,  1804. 

9.  The  final  Executive  orders  to  retain  the  Shenandoah  in  ]>ort  "by 
force,  if  necessary,"  and  to  "  forcibly  seize  her  upon  the  high  seas,"' 
September  and  October,  1805. 

10.  The  rejection  by  Parliament  of  the  section  of  the  new  F(u-eigii 
EnlistnuMit  IJill,  which  provided  for  the  exclusion  from  British  i»orts  ul 
vessels  which  had  been  fitted  out  or  dispatched  in  violation  of  the  act, 
as  rccommeiKled  by  the  Report  of  the  lioyal  Commission.  This  rejection 
was  nu)ved  by  the  Attorney  General  and  made  by  Parliament,  on  the 
mere  ground  that  this  power  could  be  exercised  by  Order  in  Council.'" 

That  these  acts  were  understood  by  the  Government  of  Great  Britain 
to  rest  upon  the  I'rerogative  and  its  proper  exercise,  is  apparent  from 
the  responsible  opinions  of  the  Law  Otticers  given  ui)on  fitting  occasions, 

1.  In  regard  to  the  Alabama,  the  Law  Otlicers  of  the  Crown  wrote  to 
Earl  Kussell  on  July  29,  1802: 

We,  therefore,  recommend  that,  without  loss  of  time,  the  vessel  [flu!  Alabama]  1»' 
seized  by  the  iiroi)er  autliorities ;  after  wliich  an  opportunity  will  be  afforded  to  timsc 
interested,  i)revious  to  condemnation,  loultorthe  facts,  if  it  nuiy  be, and  to  show  an  in- 
nocent lUistination  of  the  ship." 

2.  In  the  case  of  Laird's  rams,  the  Traw  Olficers  of  the  Crown  wrote  to 

Earl  Kussell,  on  October  19,  1803 : 

We  are  of  tlie  opinii>n,  with  respect  to  the  iirst  question  submitted  to  us,  that  tin- 
answer  to  parties  who  have  a  riff  lit  to  make  the  intpiiry  should  be  tiiat  the  seizure  [ol 
the  rams]  has  been  made  by  the  orders  of  Her  Majesty's  Govcruincut  under  the  authority 
of  the  )»rovisions  of  the  Forei>>n  Eulistiiient  Act.'- 

'  Ibit.  App.,  vol.  ill,  p.  17.  ''  Am.  App.,  vol.  v,  jip.  47'i-r)00. 

-  lltid.,  itp.  17-2-J;  ibid.,  vol.  v,  pp.l'.jr)-i;U.  'llrit.  Ai)p.,  vol.  i,  p.  ^27. 

•^  Iliid.,  vol.  i,  1).  iiOa.  "  Ibid.,  vol.  iii,  p.  yo. 

^  Ibid.,  ]).  yU;  ibid.,  vol.  V,  p.  5.').  "Ibid.,  vol.  i,  p.  657. 

"'  Ibid.,  vol.  ii,  p.  ;W4,  rt,  siq.       '"  Debate  in  Parliament,  Note  B,  App.  to  this  Aixumeiit. 

"  Brit.  App.,  vol.  i,  p.aOO.  '-Ibid.,  p.  405. 


PROPOSITIONS    OF    LAW. 


If)! 


3.  In  the  House  of  Commons,  on  February  23, 1SG4,  the  Solicitor  (Gen- 
eral, speaking  of  the  seizure  of  the  rams  ami  defending  tiie  action  of 
the  Government,  said  :  "  We  have  done  that  whicli  we  should  expect 
others  to  do  for  us,  and  no  more."' 

In  the  same  debate  the  Attorney  General,  Sir  Roundell  Palmer,  said  : 

Tlio  hoiioiiiblo  K<"itlfi'>iii'i  asks  what  right  tho  Gdvonimcnt  hail  to  »U>tiiiii  tho  ships. 
[Mr. Soyiuoiir  Fitzgnrahl:  "  Hoar,  hour."]  Tiiohoiioraltlo geiititMiiaucritis,  ■'  ili-ar ;"  hut 
I  (It)  not  hcsitato  to  say  hohlly,  and  iu  tlio  fact)  of  thu  country,  that  this  Governuiont, 
oil  their  own  responsihility,  detained  thciii.-' 

He,  Sir  Itoundell  Palmer,  saiil  further : 

In  a  criminal  case  we  know  tiiat  it  is  an  ordinary  conrso  to  go  h(>f<tre  a  magistrate, 
and  solium  information  is  taken  of  a  most  imperfect  character  to  Justify  tlie  accused's 
coiiiniittal  to  prison  for  trial,  the  prisoner  heing  remandtMl  from  time  to  time.  And  tliat 
course  cannot  ho  adojttod  in  cases  nf  seizing  of  ves.sels  of  this  description.  The  law 
pives  no  means  for  that;  and  tlKsreforo  it  is  tliat  the  Govcunment  on  their  own  resj>on- 
sibility  must  act,  and  have  acted,  in  determining  that  what  had  taken  phu^c  with 
regard  to  the  Alahama  should  not  take  place  witli  resi)e<!t  to  these  ships.' 

4.  In  the  House  of  Commons,  on  the  28th  of  April,  18()4,  the  Attorney 
General,  Sir  Koundell  Palmer,  defending  the  action  of  the  (lovernment 
ill  regard  to  the  Tuscaloosa,  as  expressed  iu  the  dispatch  of  the  Duke  of 
Newca.stlo,  before  quoted,  said  : 

Can  it  he  said  that  a  neutral  sovereign  has  not  a  right  to  make  orders  for  tho  preser- 
vation of  his  own  neutrality,  or  that  any  foreign  power  whatever  violating  tliese  orders, 
iirovided  it  hedono  willfully  or  fraudulently,  is  protected  to  any  extent  hy  international 
law  within  tho  neutral  territory,  or  hiis  any  rigiit  to  complain  on  the  ground  of  inter- 
national law  of  any  means  which  the  neutral  sovereign  may  see  tit  to  adopt  for  the 
nsscrtion  <d'  his  territorial  rights  ?  By  the  mere  fact  of  coming  into  neutral  tciiritory 
in  spite  of  the  prohibition,  a  foreign  power  places  itself  in  the  jiosilion  of  an  outlaw 
against  t]nt  rights  ol  nations  ;  and  it  is  a  mere  <|nestioii  of  practical  discretion,  judjj- 
iiieiit,  and  moderation,  what  is  the  proper  way  of  vindicating  the  olfcnded  dignity  of 
the  neutral  sovereign.-' 

5.  On  the  20th  of  Augu.st,  18G4,  the  Attorney  and  Solicitor  General, 
writing  particularly  of  the  proposed  executive  order  before  referred  to, 
in  regard  to  the  sale  of  belligerent  war  vessels  in  the  ports  of  Great 
Britain,  used  these  words : 

The  enforctiinent  of  such  orders  and  directions,  conctMiiing  as  they  do  ships  which, 
on  their  entrance  into  any  port  of  Her  Majesty,  will  have  the  character  of. piildic  shiiis 
of  war  of  a  foreign  I*ow(!r,  and  will  not  yet  have  heeome  the  jn'operty  of  any  of  Her 
Majesty's  suhjects,  does  not  belong  to  the  munieipal  law  of  this  eonntry,  but  to  the 
same  branch  of  the  Koyal  Prerogative,  by  virtue  of  which  Her  Majesty  has  the  \iower 
of  making  peact;  and  war  and  generally  of  conducting  and  controlling  the  exttrrnal 
relations  «  f  this  country  with  foreign  Governments." 

G.  On  the  2Ist  of  April,  18G5,  the  Law  Ofticers  of  the  Crown  thus 
wrote  to  Earl  llussel,in  reply  to  a  retpiest  for  instructions  to  Ciovernor 
Darling : 

With  respt'ct  to  his  Excellency's  request  that  ho  may  receivt;  instructions  as  to  tlic^ 
propriety  of  executing  any  warrant  under  the  Foreign  Enlistment  act  on  boanl  a  Con- 
iedtuate  (public)  ship  of  war,  we  are  of  opinion  that,  in  a  case  of  strong  sus]>i(ion,  he 
onglit  to  it'(|uest  tlui  permiasitni  of  tlu'  commander  of  thc!  ship  to  execute  the  warrant  ; 
and  that,  if  this  request  he  refused,  he  ought  not  to  attempt  to  enforce  the  execution  ; 
but  that,  in  this  case,  the  commander  should  be  <lesired  to  leave  the  port  as  speedily  as 
possible,  and  slumld  be  informed  that  he  will  not  be  r«'-admitted  into  it.' 

V.  That  the  faculties  for  tliia  precentire  service  are  inseptiralile  from 
the  Executive  i)ower  of  every  Government,  in  the  con<liU't  of    ,.„  ,,.„tn..  pmv.r 
its  foreign  relations,  is  proved  by  the  concurrent  •'vidence  ',r;i''Tii''''".x«'ui',v;: 
fiuiiislied  in  the  proofe  laid  before  the  Arbitrators,  resi)e('t-  """" 
ing  the  means  possessed  by  the  principal  nations  of  Europe,  and  by  the 


M- 


1  i 


ill 

I 


Am.  Ai»p.,  vol.  V,  p.  496. 


p.  470. 


I 

=  Ibid.,  p."477. 
"  Aiu.  App.,  vol. 


*  Ibid.,  p.  570. 

'^Brit.  App.,  vol.  i,  p.  465. 

8  Ibid.,  p.  55ri. 


152 


ARGUMENT  OP  THE  UNITED  STATES. 


United  States  and  Brazil  as  well,  for  the  fulHIlinent  of  tlie  international 
dnties  of  neutrality.  The  full  power  was  exercised  by  the  adininistra- 
tiiui  of  President  Washinjfton  before  any  such  authority  was  imparted 
by  Coufjjress,  and  the  later  explicit  communication  of  such  authority  by 
the  legislation  of  the  United  States  rested  upon  the  propriety  of  corrob- 
orating Executive  power  under  a  (iovernment  without  any  personal  pre- 
rofjative  in  its  Executive  head.  This  distinction  was  well  understood  in 
the  IJritish  Parliament,  ami  is  insisted  uimmi  in  thedebate  upon  the  For- 
eijjn  Enlistment  Hill  of  ISll),  set  forth  in  Note  B  of  the  Ai>pendix  to  this 
Arjjument.  Jt  was  to  this  consideratiou  that  the  pre vni tire  vigor  which 
constitutes  so  important  a  ditt'ereiu;e  between  the  statute-f  of  tlie  United 
States  and  Great  Britain  owes  its  origin. 

VI.  The  limited  territory  of  Great   Britain,  its  comi»lete  system  of 

magistracy,  its  extensive  and  ramified  organization  of  coni- 
.,,«r!.rii.rAV,'i,";  inercial  and  port  regulations,  for  the  insiu'ction  and  control 
ti»-  ...ri,.,  <,r  Kx  ot  its  immense  customs  revenue,  shipping,  anil  navigation, 
.  >u.,v.  p„«..r.  .^^  network  of  railroads  and  telegraphs,  wliich  brought  every 
part  of  its  narrow  territory  under  the  eye  and  hand  ot  the  central  admin- 
istration, gave  to  the  Government  the  instant  and  universal  means  of 
executing  its  purposes  of  internaticmal  duty,  without  chance  of  miscar- 
riage or  need  of  delay. 

VII.  The  omnipotence  of  Parliament,   the  great  juinciple  of  the 
British  constitution,  was  always  at  the  service  of  tiie  Govern- 
ment, to  supply,  extend,  or  contirm  its  authiuity  in  the  mat- 
er of  international  duty,  and  the  means  and  agencies  of  its  inompt, 

vigilant,  and  adequate  exercise.  Parliament  was  in  session  at  the  time 
of  the  (Queen's  Proclamation,  and  took  notice,  at  the  moment,  of  the 
effects  it  had  produced  in  the  law  of  piracy  as  ap)»licab1e  to  the  mari- 
time violence  it  would  induce,  as  well  as  of  the  probable  maritime 
instruments  that  the  Kebel  interests  would  press  into  their  service. 
I*arliament  was  in  session,  also,  when  the  Florida  and  Alabama  were  in 
course  of  construction,  when  the  (iovernment  was  deliberating  upon 
their  detention,  and  when  they  actually  escaped  unimpede*).  The  alac- 
rity with  which  Parliament  could  respond  with  immediate  and  effective 
legislation  at  the  call  of  the  (iovernment,  and  upon  the  occasion  of 
opeuiiuf  /rar  calling  into  exercise  the  fulfillment  by  Great  Britain  of  its  in- 
ternational duty  of  neutrality,  is  clearly  shown  by  thedebate  and  action 
of  Parliament  in  the  passage  of  the  new  foreign  enlistment  a«'t  of  1870. 
AVe  refer  again  to  Mote  B  of  the  Appendix  to  this  Argument. 

Upon  the  whole,  then,  it  is  not  to  be  gainsaid  that  the  G«)v«'rnment  of 
Great  Britain  had  at  its  commnnd  every  means  in  their  nature  and  in 
their  energy  and  scope  that  any  I'ower  needs  or  possesses  for  the  fullill- 
meiit  of  the  obligations  assigned  to  it  within  the  premises  of  this  Arbi- 
tral i  on,  by  the  Treaty  of  Washington  or  the  law  of  nations. 


Oiiini|»iti*nre 
Piirlliiinent. 


THE  DUTY  OF  C4REAT  URITAIN  IN  ITS  TREATMENT  OF  THE  OFFENDIXfi 
VESSELS  AFTER  THEIR  FIRST  ILLEGAL  OUTFIT  AND  ESCAPE  FROM 
BRITISH  I'ORTS. 

I.  This  subject,  discussed  at  some  length  in  the  British  Case  and 
Counter  (Jase,  maj'  be  disposed  of  by  a  few  elementary  propositions ; 
{(()  It  is  umloubtedly  consonant  with  principle  and  usage,  that  a  pub- 
lic-armed vessel  of  a  sovereign  power  should  be  accorded 
r,  1  "/r.ium'i'iy'  n"  ccrtaiii  privilcgcs  in  the  ports  and  waters  of  other  national 
wlir'.'.'l-.mj.Ti'  ami  jurisdictioiis  notaccorded  to  private  vessels.    The  substance 
of  these  privileges  is  a  limited  coucessiou  of  the  character 


PROPOSITIONS    01     LAW. 


153 


ot  continued  territoriality  of  the  State  to  wlii(!h  they  beloiiji',  and  a  con- 
sequent exemption  from  the  jurisdiction  of  the  courts  and  prtwcss  of  tlio 
nation  wliose  ports  or  waters  they  visit.  But  the  same  reason  wiiich 
(rives  support  to  this  immunity  tiirows  tliem  uiuhu'  tiie  immediate  polit- 
ical treatment  of  the  hospitable  State,  as  represented  by  its  lOxeeutive 
head,  in  the(;onductof  this  internatijnal,if  subonlinate,  relation.  How, 
under  the  cinnimstances  of  each  case  calling:  t\»r  Hxeeutiv«'  action,  the 
vessels  are  to  be  dealt  with  is  determined,  in  the  first  instance,  by  the 
(Government  having;  occasion  to  exhibit  the  treatment.  For  its  dt'cision, 
and  the  execution  of  it,  it  is  responsible,  politi<nilly  and  internationally, 
and  not  otherwise,  to  the  sovereij;n  whose  ])ublic  ships  have  been  so 
dealt  with.  That,  ordiiuu'ily,  the  offense  callinj^  for  remonstrance  or 
intervention  would  not  be  made  the  subjectt  of  immediate  an<l  forcible 
correction,  applied  to  the  vessel  itself,  but  would  be  brou}»ht  to  the  at- 
tention of  its  soverei<i;n  for  c(ure(!tion  or  punishment  and  apolojjy,  or 
other  ameiuls,  may  be  assumed.  But  all  this  is  at  the  discretion  of  the 
power  haviiiff  occasion  t<»  exert,  (;onfrol,  seek  re«lress,  or  exhibit  resent- 
ment. The  riaj^rancy  or  urjuency  of  the  case  may  dictate  another  t'ourse, 
to  he  Justified  to  the  sovereijjn  affected  ui>on  such  (!(»nsiderations. 

(h)  When,  however,  the  anomalous  vessels  of  a  bellijierent  not  recog- 
nized as  a  nation  or  as  a  sorereif/n  claim  a  public  character  „  ,,„,„,,i  ,„„  ,,„ 
in  the  port  of  hospitality,  the  only  possible  concession  of  ;'',;:;;',^l,,'';..;',,X",,'!a 
such  character  must,  in  subtracting:  them  from. judicial  con-  »» 'i"'a..ui,K,wir. 
tiol,  subject  them  to  immediate  political  re;;ulation  applied  to  the  vessels 
tliemseh'cs.  There  is  behind  them  no  sover«'iyn  to  be  dealt  with,  diido- 
uiatically  or  by  force.  The  vessels  themselves  ju'esent  and  represent  at 
once  whatever  theoretical  public!  relation  exists  or  has  been  accepted. 
To  hold  otherwise  would  make  the  vessels  wholly  lawless  and  predomi- 
nant over  the  complaisant  sovereij^n,  helplessly  submissive  to  tlie  mani- 
fold irresponsibilities  the  nuasi  public  vessels  assnme  to  themselves. 

[e)  The  necessary  conse(|uence  is  that  when  the  offendiiifj;'  vessels  of 
tlie  non-sovereign  beUiy,erent  have  taken  the  seas  only  by  ,,,..  ..niy  r.mHy 
(lefrauding  or  forcing'"  the  neutrality  of  the  nation  whose  hos- 
pitality they  now  seek,  such  nation  has  the  rijiht,  and,  as 
toward  the  injured  nation  clemandiuL'  its  action  upon  the  '^•»»i" ""»"•-'* 
otlendin|>'  vessels,  is  under  the  obli};ation,  to  execute  its  eoersive,  its  re- 
pressive, its  punitive  control  over  the  vessels  themselves.  It  cannot 
excuse  itself  to  the  injure«l  nation  for  omission  or  nef^lect  so  to  do  by 
t'xliibitinfi'  its  resentment  apiinst,  or  extortin{>'  redress  from,  any  respon- 
sible sovereij^n  behind  the  vessels;  nor  can  it  resort  to  such  soverei{;'ii 
tor  indemnity  aj;ainst  its  own  exposure  to  reprisals  or  hostilities,  by  the 
injured  nation,  or  for  the  cost  of  averting  them. 

II.  Upon  these  plain  principles,  it  was  the  clear  duty  of  (Ireat  Britain, 
ill  obedience  to  the  international  oblij>atioiis  insisted  upon 
by  the  Treaty,  and  the  supi>ortinf;  jjiinciples  of  the  law  of 
nations  invoked  by  its  requirement,  to  arrest  these  offendiii}*; 
vessels  as  they  fell  under  its  i>ower,  to  proscribe  them  from  all  hospi- 
tality or  asylum,  and  thus  to  cut  short  and  redress  the  injury  apiinst 
tlie  United  States  which  it  had,  for  want  of  "due  diligence''  in  fulfilling 
its  duty  of  neutrality,  been  involved  in.  The  power,  full  and  free,  to 
take  this  <;ourse  is  admitted  by  the  British  (rovernment  inits('ase  and 
Counter  Case.  Whatever  motives  governe«l  Great  Britain  in  refusing  to 
exercise  this  power,  such  refusal,  as  toward  the  United  States,  is  without 
justilication,  and  for  the  continued  injuries  iuHieted  by  the  offending 
vessels  Great  Britain  is  responsible,  and  must  make  imleinnity. 


111. 

luiiii-l  ^iii'h  lii'lliii- 
i-n-in.  Ill  ii  fiisi'  like 
thf  |iM>.-nt,  irt  th« 
rfint'tly    ;tij;iiii'«t    the 


(ii>':il  Ilritajll 
imuht.  ihiTftnri',  to 
hiivf  ■*fii'«,'d  llif  VfS- 


■i 


■■■i. 


\ 


"i.: 


"■:< 


feM 


i**^^ 


154 


ARGUMENT    OF   THE    UNITED    STATES. 


DU'*  ililifleilP'-, 


Aftf'r  prnof  of  ho-*- 
III'-  net-*  im  htiilr.tl 
tt'rrilorv.  Hit*  1  iir.l.-ii 
(tl  [irniir  \i*  fu  till* 
ri»'ii!rnl  !o  >liiiw  ,ln»' 

<ll!lK''lir«'    t(l    ITfMMlt 

1li<*in. 


DUE  DILIGENCE  AS  REQUIRED  IIY  THE  THREE  RULES  OF  THE  TREATY 
AND  THE  PRINCIPLES  OF  INTERNATIONAL  LAW  NOT  INCONSISTENT 
THEREWITH. 

I.  The  subject  of  "  duo  diligonce,"  both  in  its  natuio  and  its  measure, 
as  an  obligatory  duty  of  Great  Britain  under  tlu!  Throe  lluh's 
of  the  Treaty,  is  much  eonsidered,  upon  priucii^e  and  author- 
ities, in  the  Case  of  the  United  States,  and  is  eoniniented  upon,  with 
some  fullness,  in  the  British  Case  and  Counter  Case.  Neither  a  very 
technical  nor  a  merely  philosophical  criticism  of  this  dettnite  and  prac- 
tical i)hrase,  adoi)ted  by  the  High  Contracting  Parties  and  readily  esti- 
mable by  the  Tribunal, can  be  of  much  service  in  this  Argument.  Some 
propositions  and  illustrations  may  aid  the  Arbitrators  in  applying  the 
obligation  thus  described  to  the  facts  and  circumstances  under  whicii 
its  fulfillment  or  failure  therein  is  to  be  decided  by  their  award. 

II.  The  foundation  of  the  obligatit)n  of  Great  Britain  to  use  "  duo  dil- 
igence to  pret'ent  "  certain  acts  and  occurrences  within  its  ju- 
risdiction, as  mentioned  in  tiie  Three  Rules,  is  that  those  acts 
and  occurrences  within  its  jurisdiction  are  offenses  against 
international  law,  and,  being  injurious  to  the  United  States, 
furnish  just  o(;casion  for  resentment  on  their  i)art,  and  for 

reparation  and  indemnity  by  Great  Britain,  unless  these  offensive  acts 
and  occurrences  slmll  be  aHirmatively  siiown  to  have  proceeded  from 
conduct  and  causes  for  which  the  Government  of  Gresit  Britain  is  not 
responsible.  But,  by  the  law  of  nations,  tlie  state  is  responsible  for  all 
offenses  against  international  law  arising  within  its  jurisdiction,  by 
which  a  foreign  State  snffcirs  injury,  unless  the  former  can  clear  itsoif 
of  responsibility  by  denit  strating  its  freedom  from  fault  in  the  prem- 
ises. 

The  nigh  Contracting  Parties,  mindful  as  well  of  this  principal  propo- 
sition of  responsibility  of  a  State  as  of  this  just  limitation  upon  it,  have 
assigned  as  the  true  criterion  by  wkicli  this  responsibility  is  to  bo 
judged,  in  any  case  arising  between  nations,  the  exhibition  or  omission 
on  its  part  of  "due  diligence  to  prevent"  the  otfenses  which,  of  tliem- 
selves,  import  such  responsibility.  The  offenses  and  the  injuries  re- 
main, but  the  responsibility  of  the  one  nation  and  the  resentment  of 
the  other  therefor  are  averted  by  exculpation  of  the  State  at  whose 
charge  the  offenses  lie,  upon  ade<juate  juoofs  to  tnaintain  its  defense. 

The  nature  of  the  presumptive  relation  which  tiie  State  bears  to  the 
offenses  and  injuries  imputed  and  proved,  necessarily  tiirows  upon  it 
the  burden  of  the  exculpatory  proof  demanded,  that  is  to  say,  the  proot 
of  due  diligence  on  its  part  to  prevent  the  offenses  which,  in  fact,  ami 
in  spite  of  its  efforts,  have  been  committed  within  its  jurisdiction,  and 
have  wrought  the  injuries  complained  of. 

III.  It  is  incumbent,  then,  upon  Great  Britain  to  satisfy  the  Tribunal 
that  it  used  "due  diligence  to  prevent"  what  actually  took  place,  and 
for  which,  in  the  absence  of  such  "  due  diligence  to  prevent,"  the  Tri- 
bunal will  adjudge  it  responsible.  The  nature  of  "diligence,"  and  the 
measure  of  it  exacted  by  the  cpmlifying  epithet  "due,"  may  now  be  con- 
8idere<l. 

(rt)  The  English  word  diligence  in  common  usage,  and  in  the  text  of 
Dili,,-,,.,.  „ot  „  tlie  treaty  alike,  adheres  very  closely  to  the  Latin  original, 
'"'""''  """'  (liliffentia.  It  imports,  as  its  derivation  from  dilirfo  (to  love, 
or  to  choose  earnestly)  recpiires,  enlistment  of  zealous  purpose  toward 
the  object  in  view,  and  activity,  energy,  and  even  vehemence,  in  its  at- 
tainment. It  has  l>een  adopted  both  in  the  civil  law  and  in  the  com 
nion  law  of  England,  from  common  speech,  aud  for  this  virtue  in  its 


PROPOSITIONS   OF   LAW. 


155 


viilgJir  ineaiiin;;,  which  can  give  j)ractical  force  and  value  to  the  legal 
duty  it  is  used  to  animate  and  inspire.  So  far,  then,  from  the  word 
boaring  a  techni(!al  or  learned  sense,  in  its  legal  ajjplication  either  to 
private  or  national  obligations,  the  converse  is  strictly  true.  A  detini- 
tioii  from  approved  authorities  of  the  English  language,  common  to  the 
high  contracting  parties,  is  the  best  resort  for  ascertaining  the  sense 
intended  in  the  text  of  the  treaty.  Webster  defines  "  diligence"  as  fol- 
lows: "  Steady  application  in  business  of  any  kiinl ;  constant  ettbrt  to 
accomplish  what  is  undertaken  ;  exertion  of  body  or  mind,  without  un- 
necessary delay  or  sloth;  duo  attention;  industry;  assiduity."  lie 
gives  aNo  this  illustrative  definition:  '•'•Diligence  is  the  philosopher's 
stone  that  turns  everything  to  gold;"  and  cites,  as  the  example  of  its 
use,  tl  J  is  verse  from  the  English  Scriptures:  "  Brethren,  give  diligence 
to  make  your  calling  and  election  sure." 

We  confidently  submit  that  no  appreciation  of  the  sense  of  this  car- 
dinal jdirase  of  the  Treaty  is  at  all  competent  or  adequate  which  does 
not  give  full  weight  to  the  ideas  of  enlisted  zeal,  steady  application, 
constant  ettbrt,  exertion  of  all  the  appropriate  faculties,  and  without 
weariiu'ss  «n'  delay,  attention,  industry,  and  assiduity. 

(/>)  The  (pudifying  epithet  "due"  is  both  highly  significant  and  emi- 
nently i)ractical.  It  rejjuires  the  '' diligence,"  in  nature  n,,,- .,ni.ii«. 
and  measure,  that  is  Heusonuble^  appropriate,  and  adequate  "nr,',;";,'!!;;,'.";,"'  „?,",! 
to  the  exigencies  which  call  for  its  exercise.  It  is  to  be,  in  '"'""""«" 
method,  in  duration  and  in  force,  the  diligence  that  is  suitable  to,  or 
donnmdable  by,  the  end  to  be  accomplished,  the  antecedent  obligations, 
tlie  inter*  sts  to  be  secured,  the  dangers  to  be  avoided,  the  disasters  to 
be  averted,  the  rights  that  call  for  its  exercise.'  "  rra'stat  exactam  di- 
Vgcntiam,'''  a  phrase  of  the  civil  law,  is  a  just  description  of  the  under- 
taking •'  to  use  due  diligence."  Those  who  incur  this  obligation  to  pre- 
vent an  injury  are  excused  from  responsibility,  if  they  fail  only  by  tle- 
ficiency  of  power.  "  Ceux  (pii,  pouvant  empecher  un  dommage  (lue 
quol(|ne  devoir  les  engageait  de  prevenir,  y  auront  manque,  pourrout 
en  (''tre  ten  us  suivant  les  circonstauces."^ 

(c)  The  British  Case  and  Counter  Case  attempt  to  measure  "  due  dil- 
isouce  '  in  the  performance  of  this  international  duty  to  the  ^  ^  ^  ^  ^^  ^ 
United  States  in  the  premises  of  this  Arbitration  by  the  i*h\G.V,'t'.'o,,''ur  [hV 
degree  of  diligence  which  a  nation  is  in  the  h.abit  of  em- 
l)loyii)g  in  the  conduct  of  its  own  afiairs.  It  is  objection  enough  to  this 
test  that  it  resorts  to  a  standard  which  is  in  itself  uncertain  and  tiuctu- 
ating,  and  which,  after  all,  must  find  its  measure  in  the  same  judgment 
wiiicli  is  to  pass  upon  the  origin.al  inquiry,  and  to  which  it  may  better 
be  at  once  and  directly  applied.  It  is  quite  obvious,  too,  that  this  re- 
sort can  furnish  no  standard,  unless  the  domestic  "aft'airs"  referred  to 
be  of  the  same  nature,  nnignitude,  and  urgency  as  the  foreign  obliga- 
tions with  which  they  are  thus  to  be  compared.  Probably,  the  United 
States  might  be  well  satisfied  with  the  vigilance  and  activity,  and  scope 
and  energy  of  means,  that  Great  Britain  would  have  exhibited  to  pre- 
vent the  outfit  and  escape  from  port  of  the  Alabama  and  her  consorts, 
bad  her  men  commerce  been  threatened  by  the  hostilities  they  were 
about  to  peri)etrate,  and  her  own  ships  been  destined  to  destruction  by 
the  fires  they  were  to  light.  But  this  is  not  the  standard  which  the 
Arbitrators  are  invited  to  assume  by  this  reasoning  of  the  British  Case 
and  Counter  Case.    They  are  expected  to  measure  the  due  diligence 

'  Sen  Welistei's  Dictionary  in  vei'bo  DiK. 
*  Doiuat,  Lois  civiles,  liv.  ii,  tit.  8,  $  4,  No.  8. 


m 


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f.    ,V;. 


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i 


i    I 

'  Ml 


■I    ■  ^ 


156 


ARfUJMKNT   OF   THE    UNITKI)    STATEH. 


which  (rioiit  IJritaiii  was  to  use,  nndor  tho  r«'(|niiTments  of  thi'Tronty, 
to  pivvcnt  the  destruction  of  the  <;oiniiienH'  and  maritime  property  of 
the  United  States  l)y  the  ordinary  system  of  detection  of  frauds  npoti 
tiie  enstotns.  Kv(>n  this  comparison  would  not  exeidpate,  hut  would 
ahsohitely  eonih-mn,  the  eondu<'t  of  (Jreat  IJiitain  in  the  preinis«>s;  luit 
the  standard  is  a  fallacious  application  of  the  proposed  measure  of  dili- 
yen<'e,  and  the  measure  itself,  as  we  hav(^  seen,  is  wholly  valiu'h'ss. 

111.  The  maxims  and  authorities  of  the  law  of  "dujMlili^enee"  in 
tile  ileterinination  of  i)rivate  rights  and  redress  of  |)rivate 
hy lint, .iui.mi Ami. r,  mjuries  juav  not  very  otteu  present  sutiiciently  near  anal- 
ofiies,  in  the  circumstances  to  which  they  are  applied,  to 
the  matter  here  under  judfjment,  to  {jreatly  aid  the  »lelil)»u'ations  of  the 
Trihunal.  There  is,  however,  one  head  of  the  law  of  private  injuries, 
familiar  tothe.iurisprudenceof  these  two  jjreat  maritime  i)owers,  which 
may  furnish  valuable  pra(!tical  illustrations  of  Judicial  reason  which  they 
both  respect,  and  whose  j)ertincncy  to  certain  considerations  pioper  to 
be  ent«'rtained  by  the  Arbitrators  cannot  be  disputed.  We  refer  to  the 
law  of  res|Mmsibility  and  redress  for  collisions  at  sm. 

In  the  lirst  place,  this  subject  of  marine  collisions  is  rej'arded  by 
scientiti<;  writers  on  the  law  of  dilifjeiu^e  as  fallin{»'  within  the  rules 
whi«'li  govern  liability  for  ordinan/  iiefflifjtmr,  the  position  in  which  the 
contentions  of  the  liritish  Case  ami  ('ounter  Case  seek  to  place  in- 
ternational  i«'spoiisibility  of  Great  IJritain  to  the  United  States. 

In  th(^  secHuid  place,  the  controversy  between  the  parties  in  these 
cases  is  admitted  to  exclude  the  notion  of  intent  or  willful  purpose  in 
the  injury,  an  element  so  strongly  insisted  upon  in  defending  (Jreat 
liritain  here  against  the  faults  laid  to  her  charge  by  the  United  States. 

In  the  third  place,  the  circumstances  of  ditticulty,  «laiiger,  (d)scurity, 
uncontrollable  and  undis(roverable  influences,  and  all  possible  oppor- 
tunitii's  of  iniKK'ent  error  or  ignorance,  form  the  staple  elements  of  the 
litigati(Hi  of  marine  collisions,  as  they  are  urged,  with  ingenuity  and  per- 
sistency, in  defense  before  this  Tribunal  against  the  responsibility  ot 
(ireat  IJritain  for  the  disasters  tiaused  to  the  United  States  by  the 
means  and  agentties  here  under  review. 

And,  lastly,  the  eminent  judges  who  have  laid  down  the  law  for  these 
great  maritime  Nations,  in  almost  comjdete  concurrence,  in  this  depart- 
ment of  jurisprudence,  have  not  failed  to  distinguish  between /a»/^  and 
(U'cidcnf,  in  a  comprehensive  and  circumspect  survey  of  the  whole  sc<Mie 
and  sco]»eof  the  oc<!urrences,  from  tlie  moment  that  the  duty  arose  until 
the  catastrophe,  and  through  all  the  stages  of  forecast,  precjiutiou,  provis- 
ion, and  i)rei)aration,  which  should  i)recede,  and  of  zeal,  activity,  prompt- 
itude, and  (!ompetency,  which  should  attend,  the  immediate  danger.  We 
cite  a  few  cases,  not  <lependent  upon  a  knowledge  of  their  special  facts 
for  the  value  of  the  practical  wisdom  they  inculcate,  and  taken,  with  a 
single  ex(!eption,  from  IJritish  decisions: 

In  law,  iiu'vitiiblt!  nceident  is  tliiit  which  a  party  charfjiMl  with  an  ort'eiiHp  conhl  not 
possibly  provcnt  hy  tlic  exerciso  of  ordinary  car«,  cantion,  anil  iiiaritiini!  skill.  It  is 
not  c'IioiikIi  to  show  that  tin;  acciilont  conld  not  bo  provented  by  tlie  party  at  tins  vcm'V 
nunnont  it  oecnrrtMl,  but  tlio  iinestion  is,  uoiild  previous  nioasnnts  havo  been  a<lo])ti'(l 
to  render  tbo  occnrrenco  of  it  less  probable?  (Tlie  Viryil,  7  Jnr.,  1174;  'i  AV.  Kob., 
',>().■>;  Notes  of  Cases,  41H> ;  Tlie  .Inliet  Erskine,  (5  Notes  of  Cases,  (m ;  The  Mellonii, :! 
W.  Rob.,  i:5 ;  11  .Jnr.,  781? ;  .'>  Notes  of  Cases,  450  ;  The  Dnra,  5  (Irish)  Jnr.,  (N.  S.,)  'i^i.) ' 

In  order  to  establish  a  case  of  inevitable  accident,  ho  who  allejjes  it  innst  prove  thiit 
what  oecnrred  was  entirely  the  resnlt  of  some  rin  major,  and  that  ho  had  neither  eoii- 
tribnted  to  it  bj*  any  previous  act  or  omission,  nor,  when  oxjiosed  to  the  inlhieiioe  of 
the  force,  had  been  wanting  in  any  ett'ort  to  counteract  it.  (Tho  Despatch,  ^  L.  J.,  (N. 
S.)5i20.)- 


'  Pritchard's  Adni.  Dig.,  2d  ed.,  vol.  i,  p.  133, 


^Ibid.,  p.  134. 


PROPOSITIONS    OF   LAW. 


167 


It  in  iK)t  II  riH  iiKiJin-  wliifli  oxciisch  a  iniiMtor,  Mutt  his  vhmnoI  liiul  cniisctl  (]aii\aK«'H  to 
iuiotlH-r  ill  a  I  >ii|icHt  nC  wiiiil.  \vlu>ii  Im  liiul  wiuiiing  ami  siilliciciit,  i>|i|)iirtiiiiity  to  pro- 
tfci  hci  Iniin  fiiat  liaziiril.     ('I'lif  Lntty,  Olcott,  Ailiii..  :i-2<.>.)  i 

It  is  iKi  I'xciisi'  to  iirj!;t'  tliat  iVitiiitlio  iiitciiMity  of  the  (larkiicss  no  vijjilaiicn,  liowi'vor 
);i)iit,  <'<iiil<l  liuvir  t'lialilril  tlio  vcssi'l  iloiii)^  tilt)  <laiiia<>;c  tu  Inivi^  ilt'sciii-d  tlic  iiIIut  vi's- 
he!  ill  tiiiK!  to  aviiiil  tilt!  riilii>ti<iii.  In  iii'dpiii'tioii  to  tint  great iirs.s  of  tlii'  n('rfM»iity,  tiu' 
giiatiT  oiijflit  tt>  liavc  Im'imi  tlir  tare  aiitl  vi^^ilaiiet)  (.'iiipiovt'tl.  (Tlie  Mflloiia,  11  Jiir., 
:-:!;  :<  W.  Koli.,  i:<;  ".  Nt.tes  of  CascM,  -»■')(».)• 

It  ix  iK'i'i'ssary  tliat  the  ineasiirfs  taki'ii  to  avoiil  a  collision  mIuiiiUI  not  only  li» 
liijlit,  lint  lliiit  tliey  sUonlil  ho  takt-ii  in  tinio.  (The  Tiitleiit,  1  Spink's  Eecl.  and  Adin. 
IJi-l).. -J'.'-'.)  ' 

If  tiitiiiiiHtaiiffs  arise  evitleiitly  antl  i-leaily  re<|nirinK  prmlential  iiieaMiireM,  and 
those  iiieasiireH  are  not  taken,  and  the  natural  resiil'  of  .siieh  tniiission  \h  aeeitleiit,  tliu 
I'liint  would  lit*  iiiflined  to  litdtl  the  parl\'  liahle,  even  if  kiiiIi  result  .vere  only  ptiHsi- 
l.le.    (Tlie  Itiiii'iant.  "i  W.  Koli..  '.Md;  H  ./iir.,  i:U  ;  H  Notes  of  Cases  '..)  • 

The  want  of  an  ailei|iiate  Itiok-oiit  at  the  time  on  hoard  a  v  ■;  ei  at  sea  is  a  eulpahlo 
neglect  on  her  part,  whieli  will,  prima  fiirii;  rentier  her  respiuisihle  tor  injuries  re- 
cfivetl  liiim  her.  (The  Kmily,  Oleott,  Adiii.,  i:J>'  ;  I  Hlateh.  C't.  Ct.,  M'M',;  Thi'i  Indiana, 
1  Alih.,  Adm. ,:!:!!».)  "■ 

To  I'oiistitute  a  ydtid  look-out  there  must  he  a  siillkiont  nunilmr  of  persiMis  Htationed 
ftir  the  pill  pose,  who  iiiusi  know  and  hu  uhlu  to  disehargo  that  duty.  Tht^  (ieurgu,  <J 
.hir.,  tlTd;    1  Notes  t>f  Cases,  IGl.'' 

IV'.  Ill  jis.si{j;iiiti}>'  a  just  force  to  the  "  due  diligence,"  ui)on  the  pres- 
ence of  wliieli,  in  the  faihire  of  Great  Britain  actually  to 
ju'event  the  injuries  coinplained  of,  its  exculpation  by  the  iii.n''i,i.''ln'»;..'u.re 
tribunal  is  to  turn,  ue  have  had  no  occasion  to  insist  upon 
any  severity  or  weight  of  obligation  too  burdensome  for  the  rehition  of 
neutrality  to  endure.  On  the  contrary,  both  the  .sentiments  and  the 
interests  of  the  United  States,  their  history  and  their  future,  have 
made,  and  will  make,  them  the  principal  a<lvocates  and  defenders  of  the 
r////jf.v  of  neutrals  before  all  the  world.  In  pleading  before  this  Tribunal 
for  indemnity  at  the  hands  of  Great  Britain  for  the  vast  injuries  which 
its  noiifuHillment  of  neutral  Unties  has  caused,  the  United  States  desire 
no  rule  or  measure  of  such  duties  to  be  assumed  or  ai>i)lied  by  this  tri- 
bunal that  its  enlightened  and  <leliberatc  judgment  would  not  assign  as 
suitable  to  govern  the  conduct  of  each  one  of  the  equal  and  iudejiendent 
Powers  which  are  represented  in  this  Arbitration.  The  Thoy  ,i ,  >,oi  pro. 
United  States  do  not  them.selves  undertake  to  become  to  ri,':'.'i,V'ori'i',!;rr'',«\7. 
other  nations  guarantors  of  the  action  of  all  per.sons  within  "'' 
their  Jurisdiction,  and  they  as.sert  no  such  measure  of  resjionsibility 
against  Great  Britain.  They  lay  no  claim  to  perfection  or  infaUihility 
of  adiiiinistratiou,  or  .security  against  imposition^  misadventure^  misvar- 
ridf/e,  or  misfortune^  nor  would  they  seek  to  charge  Great  Britain,  or 
any  other  nation,  upon  any  such  requirement  or  accountability.  But 
tlie  United  States  do  maintain  that  the  di.sposition  and  action  comport- 
ing with  "due  tliligence,''  as  reasonably  interpreted,  are  adequate  to 
prevent,  and  will  prevent,  but  for  extraonlinary  obstacles  or  accidents, 
violations,  by  a  powerful  State,  of  its  duties  to  other  nations ;  that 
when  .such  prevention  fails,  the  proof  of  this  di.sposition  and  action 
toward  prevention,  and  of  the  obstacles  and  accidents  that  thwarted 
the  purpo.se  and  the  eftbrt,  are  demandable  by  the  aggrie^■ed  nation, 
and  that  upon  that  proof  the  judgment  of  exculpation  or  inculpation  is 
to  proceed. 

V.  In  conclusion,  we  conceive  that  the  Arbitrators  are  unquestionably 
the  rightful  judges  of  what  constitutes  "due  diligence,"  in  Th.Arh.in.tnMth8 
the  sense  of  the  Treaty,  and  that  this  secures  not  only  to  the  ii'.'lt,;;,'  jl",;'  an,. 
contending  parties,  but  to  the  rights,  duties,  and  interests  "'"" 


'  Prilcliard'a  Adui.  Dig.,  *«id  ed.,  vol.  i,  p.  134,  note. 
'  Ibid.,  p.  135. 
^  Ibid.,  p.  140. 


^Ibid     p.  141, 

*  Ibid.,  x».  134,  note. 

« Ibid.,  p.  143. 


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158 


ARGUMENT    OF    THE    UNITED    STATES. 


cared  for  by  the  law  of  nations,  a  reasonable,  a  practical,  and  a  periiiii- 
nent  rule  ativl  measure  of  obligation,  just  in  its  Judgment  of  tiic  past, 
and  wise  and  benetieeut  in  its  inllueuee  on  the  future.  We  concur  in 
the  final  considerations  of  the  British  Count<'r  Case  on  tliis  subject  of  duo 
diligence,  in  leaving  **  the  Arbitrators  to  judge  of  the  i'acts  presented  to 
them  by  +he  light  of  reason  and  Justice,  aided  by  that  knowledge  ol"  the 
general  powers  and  duties  of  administration  which  they  possess  as  per- 
sons long  conversant  with  public  atfairs 


m 


'  liiit.  Couuter  Case,  p.  l"^. 


^ 


XII.-THF  FAILURE  OF  GREAT  BRITAIN  TO  FULFIL  ITS  DUTIES, 
AS  iiSTARLISHEI)  AND  RECOGNIZED  BY  THE  TREATY,  CONSID- 
ERED UPOiN  THE  FACTS. 


OONSIDERATIOXS  OF  GENEKAL  APPLICATION. 

It  is  assumed  in  the  British  Case,  and  argned  in  addition  in  the  Coun- 
ter Case,  that  the  only  vessels  which  tall  within  the  descrip-  ..  .^  ^^ 
tioii  of  the  tirst  Article  of  the  Treaty  as  "  the  several  vessels  ..rmn/Xsl-  [,"",' 
wliicli  have  given  rise  to  the  (;lainis  generically  known  as 
tlie  "Alabama  c'linis,'"  are  theFlo'ihi,  Alabama,  C«e«)r};ia,  and  Shenan- 
doah. As  to  these  vessels  there  i.s  no  contention  in  this  respect,  and 
tliey  and  their  history  and  caieer  are  included,  indisputably,  within 
tlit»  jurisdiction  conferre«l  upon  the  Tribunal  by  the  Treaty  of  V'ashington. 

Tiie  Case  of  the  United  States  sets  f<  "th  a  list  of  certain  oi.ier  vessels, 
which  they  understand  to  be  embraced  within  the  jurisdiction  of  the 
Tribunal,  and  the  circumstances  of  whose  dispatch  and  career  bring 
tlii'iii  within  the  application  of  the  Knles  of  the  Treaty,  and  of  the  con- 
(lomiiation  oi  CreatBritain  by  the  Tribunal  for  failure  to  fulfill  the  <luties 
in  tliis  regard  insisted  upiui  by  these  Jiules,  and  the  principles  of  Inter- 
national I^aw  not  inconsistent  therewith.  Of  these,  three,  viz,  the  Clar- 
ence, the  Tacony,  and  the  Archer,  are  described  as  ten<lers  of  the 
Florida ;  and  one,  the  Tuscaloosa,  as  a  tender  of  the  Ahil»ama.  The 
olliers,  the  Suujter,  the  Nashville,  the  Retribution,  the  Tallahassee,  and 
tlieChickanuiuga,are  indepeiulent  vesvsels.  In  addition  to  the  evidence 
liimished  by  the  history  of  each  of  these  vessels  in  the  Case  of  the 
I'liitcd  States,  the  Counter  Case  presents  special  considerations  to  show 
that  all  these  vessels  fall  within  the  description  of  the  Treaty  jurisdiction 
of  the  Tribunal.' 

The  speciti<t  facts  connected  with  these  several  vessels  have  been 
made  the  subject  of  comment  in  previous  ])ages  of  this  Argument,  and 
they  tlo  not  iummI  to  be  furtiu'r  specially  noted  at  i)res«'nt.  Undoubt- 
edly the  "considerations  of  fact  of  general  applica  ion,"  which  now  oc- 
cupy our  attention,  have  their  most  iini)ortant  reli.tion  to  the  I'Morida, 
tiie  Alabanni,  the  Georgia,  and  the  Shenandoah,  the  principal  agents  in 
tlio  injuries  to  the  United  Stat<'s  whi(!h  enter  into  the  subject  of  this 
Arbitration,  and  any  special  applicability  to  the  circumstances  of  the 
other  vessels  need  not  at  present  attract  our  attention. 

We  present  now  to  the  notice  of  the  Arbitrators  certain 
ttr.NERAL  FACTS  which  inculpate  Great  Britain  tortailureto  iirii.n„  it,  miiin  n. 
i'ultillitsobligationsinthei)remises,  asassigned  by  the  Treaty. 

!.  The  absolute  omission  by  Great  Britain  to  organize  or  set 
on  foot  any  scheme  or  system  of  measures,  by  which  f,„„i,„,.,„,,.  ;„  „,, 
the  Covernment  should  be  juit  and  kei)t  in  possession  of  """""=  """""'"'""■ 
int'orniation  concerning  the  etforts  and  procee<lings  which  the  interests 
of  the  liebel  belligerents,  and  the  co-operating  zeal  or  cupidity  of  its  owu 
s^ubjects  would  and  did  plan  and  carry  out,  in  violation  of  its  neutrality, 


jp^Tg 


i 


'  Counter  Cnse  of  the  ITuited  States,  pp.  3.  4. 


160 


ARGUMENT  OF  THE  UNITED  STATES. 


NoBftinni 
tioii.^id  inn  nt  till  ^ 
itnticf. 


is  coiispiiuions  from  the  outset  to  the  close  of  tlie  tiansactioua  iio»v 
under  nniew.  AH  the  observations  in  answer  to  this  charf»e,  made  in 
tlie  contemporary  correspondence,  or  in  tlie  British  Case  or  ('oniiter  Case, 
ne(>essaril.v  admit  its  truth,  and  oppose  the  imputation  of  want  (►f'Shu' 
dilifijence  "  on  tins  score,  ni)()n  tiie  sinjple  ground  that  tiie  ohliyatioiis 
of  tlie  <lovernnient  did  not  recpiire  it,  and  that  it  was  an  unacceptablo 
ofllcc,  both  to  (iovernment  and  people. 

Closely  connected  v  ith  this  omission  was  the  ne}>lect  to  i»rovide  any 
systematic  or  licneral  otlicial  means  of  immediate  action 
of  i>nm..,i,at.  ;„t,„„  IV  tlic  various  ports  or  ship-yards  ot  the  km^'dom,  in  arrest 
of  the  preparation  or  dispatch  of  vessels,  threatened  or  piolt- 
able,  until  a  <lelil»ciate  inspection  should  seasoudhlif  determine  whetiior 
the  hand  of  the  (ioverimicnt  should  be  laid  upon  the  enterprise,  and  its 
project  broken  up  ami  its  projectors  punished.  The  fact  of  this  nej^loct 
is  indisputalile:  but  it  is  denied  that  the  use  of  "  due  diliyeiute  to  pre- 
vent "  involved  the  oblijiiation  of  any  such  means  of  prevention. 

We  cannot  fail  to  note  the  entire  abseiu;e  from  the  proofs  preseiitod 
to  the  Tribunal  of  any  evidence  exliibitinf»'  any  desire  oi 
'""1  effoi't  of  the  iJritish  (lovernnuMit  to  impress  upon  its  stall  Ot 
ollicers  or  its  mi'.<;istracy,  of  whatever  {;rade,  and  of  j^'eiit'iiil 
or  local  jurisdictiini,  by  proclamation,  by  circular  k'tters,  or  by  special 
instructions,  any  duty  of  vi<;ilance  to  detect,  of  promptitude  to  declaic. 
of  acti\  ity  to  <liscoura<i(',  the  illej{al  outfit  or  dispatch  of  vessels  in  vio 
lation  of  international  duty  towards  the  I'nited  States. 

It  is  n<>t  less  ai*parent   that  (Ireat  IJritain  was  without  any  pxisc 
N„niru.,,.i,,r«,,i  <'ntini;'  ollicers  to  invite  or  to  a<^t  upiui  information  wliicli 
u!Z,^w!^t\nl^'-^  mij-lit  support  le/^al  i»rocee<liiiys  to  jmnish,  and,  by  the  tn- 
'""  ror  thus  inspii<'d,  to  |>revent  the  infractions  ot  law  ''u:-:h 

tended  to  the  violation  of  its  international  duty  to  the  LTnited  tHat-. 
It  was  equally  witluuit  any  system  of  executive  ollicers  speciallx  cliarjicd 
with  the  execution  of  process  or  mandates  of  (u>urts  or  majiistrates  to 
arrest  tin*  dispatch  or  esca|>c  of  suspecte<l  or  incriminateil  vessels,  and 
experienced  in  the  detective  sajjacity  that  could  discover  and  ai»prcciiitc 
the  evidence  oi»en  to  personal  observation,  if  intrusted  with  this  exocii 
five  duly. 

It  is  no  answer  to  the  imi)utatiou  of  want  of  "due  dili<;enci'"  in  all 
this,  lliat  (ireat  lliitain  dispensed  with  prosecutinjj  ollicers  in  its  inain 
tenance  of  public  Justice,  and  relied  upon  the  private  interests  of  an 
grieve<l  parties  to  judsci'iite,  at  their  own  charge,  and  by  their  own  law 
yers,  \\)V  crim«'s  or  otfenses  a.uainst  the  laws,  it  may  be  that  miirilcr. 
and  bui<>;laiy,  and  forj^ery,  and  frauds,  in  CJreat  Britain,  can  be  thus 
safely  left  to  ])rivate  prosecutions,  because  of  the  common  interest 
and  inotectioii  of  the  community  securiufi;  due  attention  to  the  public 
Justice,  where  all  are  enlisted  to  punish,  and  all  feel  the  need  of  pro 
tection.  ]>ut  what  analojiy  is  there,  in  this  situation,  to  the  <'ase  oi 
international  obli<>ation,  where  a  foreign  nation  is  the  only  sufierer, and 
interest  and  feeling-  in  the  domestic  community  are,  at  the  best,  imiillt'i 
ent  and  remote  from  the  crime  and  its  conse(iuences  ?  The  actiud  lios 
tile  disj)osition  of  the  poimlation  of  the  pints  and  eini)oriums  of  (Irtiit 
Britain  at  the  time  of  these  international  injuri«'s  to  the  United  tttatts 
we  need  not,  for  the  puiposeof  this  suggestion,  insist  upon. 

The  result  of  all  this  was  that  the  Covernment  of  (Ireat  Britain,  i" 

the  various  ways  we  have  suggested,  exhibited  none  of  the 

brf"kuMh,J''i,.»l,i'^  disposition  or  action  which  we  have  insisted  uixm  as  ii) 

"'"'""  eluded  in  the  requirenuMitof  "due  diligem^eto  prevent"  tin 

occurrence  of  tlie  injuries  to  the  United  ytat<»8  from  the  ottending  ves 


FA  in  RE    OK    GRKAT    BRITAIN    TO    FULFIL    ITS    DUTIES. 


161 


i9-  *:^ 


st'ls  of  which  thoy  now  complain.  Early  advised  and  persistently  re- 
jiiindcd  by  the  ^Minister  of  the  Unite<l  States  of  the  system  and  orj^an- 
ization  introdnced  within  the  jurisdiction  of  (Ireat  Britain  to  i)repare, 
put  forth,  and  nmintain  from  thence  maritime  war  against  the  United 
States,  the  (Jovernment  of  (Ireat  JJritain  took  no  steps  to  be  informed 
of,  to  break  up,  or  to  punish  this  nystetn,  or  i)reclude  or  render  diftieult, 
ill  advance,  parti<ular  i»rqiects  in  aid  of  this  general  purpose.  *lt  early 
adopted  and  steadily  adhered  to  the  method  (l)ol'  regarding  the  whole 
duty  as  a  domestic  one  of  enforcement  of  muni<'ipal  law,  and  (2)  of  re- 
ducing the  function  of  the  ICxecutivc  (lovernment  t)f  Kngland  to  that  of 
a  magistrate  receiving  the  complaints  of  the  United  States,  and,  with 
such  legal  acumen  as  it  could  command,  disposing  of  them  upon  the 
sole  consideration  of  the  comjdeteiiess  of  the  olfcnse  against  the  muni- 
cipal law,  and  the  competency  and  suHiciciuiy  of  tin;  proof  in  hand  to 
secure  a  conviction,  should  a  pro>   .  itiou  be  thought  worth  while. 

Tliis  theory  and  practi«'e  of  (Ireai  lliitain,  reiecting  the  interuatioiial 
duty  ami,  necessarily,  omitting  any  spoutaut'ous,  strenuous,  i,,,,,!,,,,,  ,„  ,„ 
au(l  organized  movements,  fl.v  <^  (iarmnncut,  tow i\n\s  or  in  ft';;,VV/\'h^\''„'.H 
tlic  (lischarge  of  such  duty,  were  in  tliiMUselves  wlioUy  in-  ^'"•-■^•j"' 
(!oasisteiit  with,  and  couti-ary  to  ••  <bu»  diligence  to  prevent"  the  injuries 
to  the  I'liited  States,  lor  which  redress  is  now  asked  through  the  judg- 
nieut  of  the  Tribunal. 

The  proposition  covers  the  case  of  vessels  which,  in  the  absence  of 
flics*'  necessary  means  for  inspection  and  scrutiny,  escaped  n,..  ,i,i,u,tM.n»  ..r 
tlie  special  notice  of  the  (lovernment.  That  they  were  not  p,',„i,'„t"'o'i"" t'" p '. 
complaiiUMl  of.  or  dis'*overed  by  the  Minister  of  the  United  ll^'^HJ'i^ulH^^t^i!^ 
Slates,  does  not  relieve  <  Ireat  Ibitaiii  from  its  duty  of  "  due  '"'■■^•■"i"'""- 
diligeiu'e"  toiliscovertheiii.  andtoprexent  tlieirescape.  The  duty  wouhl 
liave  existed,  if  mislortuue  liatl  deprived  tlu»  I'nited  States  of  such  a 
representative,  or  if  hrok«Mi  diplouiatic  relations  had  removed  him  from 
tlie  Kingdom.  Tlu'  proposition  covers  the  cases  of  the  Florida  and  the 
Alal)aMia.  were  their  iinue  immediate  features  less  obvious,  and  Great 
r.ritain's  failure  in  duty  only  general,  ^riie  proposition  covers  the  cases 
of  the  (leorgia  and  the  Shenandoah,  wlii»'h  escajjcd  without  attracting 
the  notice  of  the  Ibitish  government,  for  the  very  best  reason  in  the 
world,  that  it  had  taken  no  means  t(>  observe,  to  detect,  or  prevent  their 
dcpartui'e. 

Tlie  Arldtrat<us  will  observe  the  wide  ditferen(.'e  from  these  views  and 
conduct  of  Great  llritain  in  the  estimate  which  the  United  States  have  put 
upon  their  duty  in  these  respects,  of  spontaiUM)Us,  organized,  and  per- 
manent vigilance  and  activity,  and  in  the  methods  and  etlicacy  of  its 
IM-rtormance.  On  all  the  o(  casions  np(Ui  which  this  duty  has  been  called 
Mito  exercise,  the  Government  of  the  United  vStates  has  enjoined  the 
spontaneous  and  persisteirt  activity  of  the  corps  of  District  Attorneys, 
Marshals,  Uollect(Us,  and  the  whole  array  of  their  subordinates,  in  the 
duties  of  «)bservation,  detection,  information,  det«'ution,  prosecution, 
iind  ]>revention. 

These  idiapters  in  tli  •  history  of  the  law  of  nations,  as  observed  l»y 
the  United  States,  need  not  here  be  reviewed.  The  materi- 
iils  ill  the  proofs  l»efore  tlu'  Arbitrators  are  ample  for  their  ru,t".'.islV.l.'rMw''.v'i 
•  xaiuination,  if  •><•»  ;ision  in  their  <lelibrations  should  ari.se.  itriiiuieH'"':,'',!^;,'' 
Whitever  actual  faibves  may  have  occurred  in  the  execai- 
tioii  by  the  United  States  of  this  admitteil  duty,  they  have  been  not  for 
liie  want  of,  but  in  spite  of,  tiie  exhibition  and  earnest  prosecutiim  of 
these  general,  si»ontaneous,  and  comprehensive  nu'ans  of  prevention,  the 
entire  abseu'*e  of  whica  we  comjiiain  of  in  the  conduct  of  the  Govern- 
11  (• 


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162 


AKOr.MENT    OK    THK    UNITED    STATES. 


^ 

'   ■     ■  i 

1 , 

ii 

'P"!! 

I' 


At.-f-nrc 
♦';irr.*'-tn»'f(i     on     III 
|U't  ol  (»ri'iit  hritani 

a   III  fTlHC 

tit      ho^t 
ptaiiitd  ul. 


ment  of  (Jreat  liiitain.  Nor  has  the  conduct  of  other  f^reat  Powits, 
under  a  similar  oblijEfation  of  duty,  either  adopted  the  theory  or  followed 
the  methods  by  which  (rreat  Britain  ^overne(l  itself.  That  the  Govern- 
ment, as  such,  should  act  and  continue  to  act,  and  liave  and  use  tiid 
means  of  acting,  and,  in  default  of  so  doing,  be  responsible  for  the  coiise- 
(juence,  is,  we  submit,  the  public;  law  of  nations  as  observed  by  the  i)riM 
cipal  Powers,  including  (ireat  Britain  in  other  cases  than  that  now  in 
judgment  before  the  Tribnmd. 

It  was  the  fiiilure  of  the  British  (lovernment  "  to  use  due  diligence" 
„,„  to  maintain  inviolate   its  international   obligations   to  the 

United  States,  in  form,  manner,  and  ettect,  as  above  stated, 
t',r,iy'".o,n"  that  gave  the  first  warrant  and  license  to  the  enlistment  ol' 

the  sympathies  for  the  rebels  and  hostility  to  the  CJovern- 
ment  of  the  United  States,  (which  animated  such  large  and  iuHuential 
interests  in  (Jreat  Jiritain,)  in  the  actual  practical  service  of  theKeliel- 
lion.  Jt  was  this  absence  of  an  active  atlirmative  disposition  of  diiifumc 
in  the  Governnient,  so  apparent  to  all  its  subjects,  to  the  llebel  agents, 
and  to  the  ^[inister  and  Consuls  of  the  United  States,  that  threw  Ww 
whole  unchecked  free«loni  of  trade  and  industry,  enterprise  and  appe 
tence  of  gain,  so  much  insisted  u|)on  in  the  British  Case  and  Counter 
Case  as  a  necessary  part  of  British  liberty,  into  zealous  complicity  with, 
and  earnest  adhesion  to,  the  maritime  war  against  the  commerce  of  tlie 
United  States,  whose  disasters  are  under  review  before  tin;  Tribunal.  In 
this  course  of  practical  non-administration  of  the  duty  assigned  by  tlic 
Treaty  as  hindimi  upon  (Jreat  Britain,  we  ask  the  Tribunal  to  find  a  <U'ti- 
nite  and  substantial  failure  to  fultill  that  duty,  and  to  inculpate  tiic 
Nation  accordingly. 

As  early  as  August  L'S,  18<>1,  the  ]>rin(ripal  newspaper  of   Liverpool 
(the  Post)  correctly  des<'ribed  the   state  of  feeling  in  the  British  com 
niunity  as  follows : 

We  have  no  doiiht  wliiitoviT  tliiif  tilt'  vast  majority  of  (lie  pooplc  of  tliis  potmtn. 
ccrtiiinly  of  tlu'  jwopl*!  of  Liverpool,  arc  in  favor  of  the  eansf  csponscil  by  the  Scco- 
Hionists.  Tin.'  defeat  of  the  Federalists  y;ives  ninnixed  ideasuie  :  the  sueeess  of  the  Con 
federates  is  artlcntly  hoi>ed.  nay,  ronlidently  predicted. 

It  was  an  appreciatiiMi  of  this  influence  i)revailing  in  that  comniiinit\ 
and  aiVecting  the  local  ollicers  of  the  (lovcrnini'iit,  that  pionipti'd  Hail 
Bussell  to  say  : 

It  appears  to  me  that  if  the  ollicers  of  ihe  ("nstoins  were-  misled  or  hlinded  by  tln' 
{(eneial  partiality  to  the  canse  of  the  South,  known  to  |»revail  at  Liveipool,  and  tli;il 
^rJmrt-/«ciV  case  of  ne<;li<;ence  conld  he  made  out,  (ireat  ISritaiii  nii^^lit  t';ijrly  irrmit  a 
snin  ecpiivalent  to  the  amonnt  of  losses  sustained  by  the  captures  of  the  Alai>am,i.' 

It  needs  no  argunionr  to  show  that  if  the  (io\  •■inment  of  (Ireat  Uril 
ain  in  1801  and  1.S<Jl',  when  the  s,\stcntati<npt'ratioiisof  the  Hebel  agents. 
in  a  community  thus  ctilisted   in   llioir  canse,  Wfic  denounced  l»y  tiic 
Minister  of  the  United   States,  Intd  used  to  tlio>'  jigeiits  and  that  com 
mnnity  the  language  employed   by    iliu  1   Russell  in   ISIm,  and  had  ex 
ecuted  the  sentiments  thus  expres.M'd,  tlu're  would  iiave  been  no  ''Ala 
bania  claims"  to  «K*eupy   the  attention  of  this  TriUimal.     lOarl  Russell. 
after  stating  that  '•  he  was  son y  to  observe  tli^i:   tiie   iinwarraiitiihlc 
])ractice  of  building  ship^  in  this  coiintiA.  to  l»n'  used  as  vessels  of  war 
against  a  State   withwlneh   Hn    AIjij«'siy  is  ;it  ^^-aj-e,  still  contiiiiu's." 
proceeded  to  say :  '*  Xou.it   is   ver\  |»ossiKi?«  rliat   U.\   such  shifts  am! 
stratagems  the  petialties  of  the  extstiii^   ^iw^  •>*'  tliis  coun*^ry,  nay,  ot 
any  law  that  <'onld  he  en.icted.  may  '  le,i ;  but  the  olfeiise  thus 

ottered  to  Her  Majesty's  authorits  an<.      -h  ;v  bv  tin'  dv  favto  riileisot 


la  li  <  I 


Note  B  of  Appendix  n.  this  Ar'roment. 


FAIU'RE    OF    (JREAT    I5RITAIN    TO    FULFIL    ITS    Dl'TIKS.       1G3 


■'ii;- 


Failure    to    niirf r* 
Hti\f>    iiii  1    MtiitUtory 


tli(!  C4)iitetleiJite  States,  whom  IJor  Majestj-  acknowleil^^es  as  belliger- 
ents, and  whose  agents  in  the  United  Kingd.c'»'  enjoy  the  benetits  of 
our  hospitality  in  (juiet  security,  remains  the  same.  It  is  a  proceeding 
totally  unjustifiable,  and.  manifestly  offensive  to  the  British  Crown."' 

II.  The  next  great  practical  failure  to  fulfill  its  duty  to  the  United 
States,  on  the  part  of  (Jreat  IJritain,  was  in  its  omission  to 
ascertain  its  resources  of  J'rerogative  and  statutory  author- 
ity for  maintaining  its  neutrality,  and  to  announce  to  its  "" 
sul>Jects  and  to  the  Kebel  agents  the  possession  of  these  i)owers  and  the 
determination  to  use  them.  If  an  examination  had  satisfied  the  ( lovern- 
nuMit  that  it  was  not  endued  with  the  re«|uisite  faculties  of  prevo^tion, 
it  should  have  put  them  in  practice,  and  scattered  the  machinations 
against  its  peace  and  honor,  and  against  the  maritime  interests  of  the 
friendly  power  to  which  it  was  so  closely  engaged  to  observe  its  inter- 
iKitional  duty.  If, on  the  other  hand,  such  examination  disclosed  doubts 
or  defects  of  y>rc<v'«///V'  Power,  it  shouhl  have  obtained  from  i*arliament 
the  adequate  authority.  If  the  (rovernment  received  from  its  principal 
Law  Officers  an  interi>retation  of  the  Prerogative  and  of  the  Foreign 
Kidistment  A(!t,  that  i  ut  at  its  service  the  HviiHonuble,  appropriate^  and 
a<k<iuatv  means  f\)r  the  prevention  of  the  acts  and  occurrences  within 
its  Jurisdiction,  which  the  I'ules  of  the  Treaty  prescribe,  it  should  have 
placed  the  shipbuilders  of  Liverpool  and  the  Clyde  in  the  predi(^ament 
of  open  contemners  of  the  laws  of  tlu;  realm,  and  of  actual  conflict 
with  the  whole  power  of  the  (lovernment. 

\^,  on  the  other  hand,  these  Law  Otliiiers  advised  a  corroboration  of 
the  preventive  ]>ow('r  of  the  (lovernminit,  it  should  have  been  granted 
by  statute.  We  have  searched  in  vain  for  any  evi«len(!e  in  these  re- 
{lards  of  '' due  tliligtMice  "  on  the  part  of  th(^  (Jovernment  at  the  oi»en- 
iiij;  of  the  Rebel  hostilities.  We  find  inflammation  of  i)oi)ular  senti- 
ment urging  a  participation  in  those  hostilities,  and  instant  occasion  for 
the  (JovernnuMit  t(»  be  energetic  and  alert.  VVe  find  earnest  and  per- 
sistent appeals  to  take  su<'h  a  position  made  to  the  (Jovernment  by  the 
representatives  of  the  United  States,  in  ISTo,  when  the  war  between 
Frame  and  (lermany  broke  out,  we  find  (Ireat  lUitain  enacting  a 
vj<;t»rous  l''oieign  h'nlistment  Statute,  and  exhibiting  zeal  and  alacrity  in 
tile  exercise  of  its  new  |)owers,  and  in  putting  in  motion  all  the  retpii- 
site  prerogativ*'  authority  by  Orders  in  Council. 

Suppose,  for  a  moment,  that  in  May,  1<S(!1,  in  sequence  of  the  Queen's 
I'roclamatioi',  the  Attorney  (leneralof  Kngland  had  brought  into  Parlia- 
ineiit  a  Foreign  l^nlistment  J»ill  to  place  at  the  service  of  the  Mvecntive 
(lovernment  Ih;'.  means  of  niiiintaining  toward  the  United  States  the 
(Intit's  of  nentiality  which  that  (iovernment  by  the  Proclamation  had 
assumed — su<!h  a  Uill  as  was  passed  in  1S7(>.  Su|»posc,  in  so  doing,  he 
had,  speaking  the  purposes  and  motives  of  the  Executive  (lOvernment, 
said  : 

1  tliink  tlic  Ifousf  will  ii;;i('c  thtit,  upon  tlic  luciikin;^  out  of  this  uiifxp«'ct<  1  ami 
most  cniaiiiitoiis  war,  //<»■  Mdji-dii'xdDiirnmtiit  ii,>iili!  Iiuic  hivn  very  minh  to  ('(ikh  // 
th<)f  had  ikJiuji'il  for  a  n'nujU  dnii  to  introdHcr  litis  mmxnn.- 

Snpi>ose  other  members  of  the  Clovernment  had  supported  the  Bill  by 
ar{;nments  like  these  : 

III'  need  uol  addiit'i'  arjiiiu'iMits  to  show  liow  iiiijiiNtiliahlo  ami  inoiistioiis  it  would 
!«'  tor  Hi'itish  siilijccts  to  take  jiart.  in  hostilitifs,  whnii  tin-  avowvtl  jiolicy  of  tli«'  (Jov- 
•  rinntiit  wa**  that  of  pi'ifcct  neutrality.  -  »  •  A  similar  law  «'xistfd  in  the  United 
States ;  wiiile  on  the  continent,  (ioverninents  were  aldi?  to  prevent  their  suljjects  from 
violatiiiji;  neutrality. 

Am.  \\)\h,  vol.  i,  i».  (VM  ;  cittMl  on  p.  :<09,  UaHo  of  the  United  States. 
•Attorney  tJeneral  ('(dliei'  in  I'arliameut.  Aujjnst  1    l:r*70.     Note  M,  Appendix  to  this 
Ar|;iiiiient.' 


f 


104 


AKCJUMENT   OF    THE    l.MTKlJ    .STATES, 


Tlif  nii'iisiiic  f-jivt'  jiowor  to  tlicSccrofiiiy  of  Stato  to  detain  a  sii.spocli'il  ship  ;  as  ,i1m. 
t(»  iiical  oUiiLTs  at  the  ports,  who  wouhl  lopoit  to  tho  St-cretary  of  State,  so  as  to  ( asi 
on  him  full  leMponsibility.  It  einbmlied  all  tho  leiMtmiiieniiatioiis  of  tlie  Kepoit.  witli 
the  »'Xt'(;|»tioii  of  that  relating;  to  the  reception  of  vessels  into  iSritish  ports,  and  ihi. 
ohjicl  coiilU  he  iitromplinlivil  by  (Jnlirn  in  Coinnil.* 

Suppose  arjiiimoiits  against  its  iiiterfercuce  witlt  freedom  and  sliip. 
buildinj;-  Ijad  been  answered  as  follows: 

The  fact  that   war  was  ra;L>inK  (on  the  Continent )  was  in>  reason  for  not  ainemlin;; 
our  ninnicipal  law  in  points  where  this  was  notoriously  defictive.     It  \\nn  ridicnliiiis  t7, 
say  that  a  Itnilih-r  did  not  know  that  tlu'  vessel  he  was  buildinjj;  was  for  war  piii 
])oses ;  and  it  was  a  less  evil  that  the  ship-hnildiuff  interest  should  sutfer  a  little,  tliaii 
that  the  whole  inition  shoiihl  he  involved  in  diltienlties.- 

It  would  intt  occur  in  one  ease  out  of  a  thousand  that  the  builder  of  a  ship  wi  iilil 
have  tl.e  smallest  dilh<nlty  in  pioviuy  what  his  contract  was,  ami  under  what  ciriinn 
Mtanees  it  was  undertaken. 

'J'he  object  of  tlu^  clause  was  to  )>reveut  the  escajie  of  susjiected  ships  from  the  li;ii- 
bors  of  the  kinjidom  till  the  Secretary  of  State  has  been  communicated  with.  1  In 
clause  jjave  an  ad  hitrrim  power  of  seizure.' 

The  oliject  was  to  ■;ive  power  to  any  olHcer  who  saw  a  ship  about  to  escape  to  pi. 
vent  such  escape. 

Till-  otli<'ers  naine(l  would  be  able  to  seize  a  vessel  without  special  instructions,  in  m- 
der  that  such  vessel  mijflit  not  be  allowed  to  es(;a|n!.     It  was  a  most  im|»orta!it  powii. 

The  clause  was  co|>ied  friun  the  >h!rchant  Shippinji  A»;t.  which  had  been  in  force  lor 
twenty  years  without  any  complaint.' 

Suppose  all  tliis,  and  we  should  have  .seen  a  i^erforniauce  by  tin- 
British  (lovernuient  of  the  duty  of  *'<liie  <lilio<'iiee"  in  the  partieulai 
now  insistetl  upon,  for  the  ab.sence  of  which  we  iu)w  inculpate  tliiii 
Nation.  l>ut  we  should  have  seen  no  Florida,  or  Alabama,  or  (ieorp;iii. 
or  Shenandoah  upon  the  ocean,  and  re«lress  for  injuries  woidd  never 
have  needetl  to  be  soiioht  front  the  Justice  of  this  Tribiuial  by  tin- 
United  States. 

Jint  we  are  not  left  to  arjiiiineiit  to  show  how  wide  and  beneficinl 
would  have  been  the  practical  elVects  of  such  action  by  the  Jiritish  (lov 
eminent,  at  the  opening;'  of  the  rebel  hostilities,  in  checking?  and  fnis 
trating  the  jn'oclivities  of  British  stU)Jects  to  aid  iind  invioorato  tin- 
maritime  w-a-  a<:ainst  the  United  States,  nor  how  readily  the  subordi- 
nate and  local  odicial  staff  could  have  worked  out  these  i)rovisioiis  oi 
t!ie  law.  Some  extrat^ts  from  the  correspondence  of  the  (rerman  Vau 
bassador  and  '.he  Ib'tish  I'oreio'ii  Secretary  will  exhibit  this  intluoiict' 
and  its  results  in  the  (-iear<st  li<»ht.  ("ount  Uernstorff,  nnder  dateol 
October  S.  1S7(».  wrote  to  I'^arl  (Iranville  an  elaborate  representation  on 
the  subject  of  the  exi)ort  of  contraband  of  war,  and  therein  speaks  n> 
follows  : 

According  l.i  \'.inr  Ilxcellciicy's  own  adiiiissjon  the  execiiti\  e  lias  the  power  to  pi"- 
Iiil)il  the  export  of  contraband  of  war.  Hut  you  slate  the  prailice  is  to  maki-  use  ni 
this  ii<;ht  oiil\  ill  the  iiiteicsf  of  Kimlaild,  ;is  ,ii  .he  case  of  sell'-defense.  A  letter  el 
the  Duke  of  \Velliii.nl.'ii  to  Mr.  (.'amiiiiji',  dated  the  ;tittl<  of  AiiKust,  I— .i.">,  and  repiiiitcil 
in  a  London  n.-wspapir  immediately  after  the  indiscretion  of  Count  I'alikao,  nt'titr^ 
this  assumpl  ion,  provinj;  that  I'liulaiid.  as  a  neutral,  has  re))eatedly  ]U'ohi!Mted  tlie.x 
|>ort  of  arms  by  an  Order  in  ( 'oiim  il.  '•  accord in;f  to  the  usual  lU'aclice,"'  as  ihe  rtMiowiii'.i 
i  >iikc  says.  In  one  part  ol  his  letter  Ihe  words  occur.  -'  1  am  .ifi  aid,  tliiMi,  that  the  w.iilil 
\\ill  not  entirely  aiMpiit  us  of  at  least  not  doinj;  our  utmost  to  in'e\eiil  lliis  breacli  I'l 
neutrality  of  wliirli  tin-  Tori.'  will  ai-ciis.'  us." 

Practice.  c()iise.|ii.Milly,  is  in  itself  not  o]>pi)>ed  to  the  ad<)))lii)n  of  a  measure  dcsir.ii 
by  MS  for  the  jirohibil  ion  of  tlie  sale  of  aims  to  our  enemy.  Ibit  flie  Ijiw  allows  (Jov 
<-riimeiit  a  certain  latitnd'of  eonsidcialioii  to  make  use  of  tli.'ii  ,M.\\er  iu'eiu'diii;,'  i' 
circuin.stunces.     Your  Kxcellciicy  is,  howtscr,  of  the  opinion  that  the  present  cii>t(iiii- 


'  Lord  Ifalifax  in  Parliamenl,  Au::nst  -.  \^7().    Xote  R.  Appendix  to  this  Artiniiicnl 
-N'iscouiil  i;  u  .   in  I'arliaineiil,  Au^.  I,  I'^TO.  iliid. 
■■■Soli<-itor  (■eiiiTal  Co|eridu:e  in  Parliament.  Auuiist.  l."*7",  ibid. 
'  Attorn- y  (imeral  Collier  in  Parliament.  .\n<|ust  :!,  It^TO.     Note   11,  Appendix  to  tli' 
Ar'uiiii-iil. 


I'. 

sy^lciii  wo 
uar.     I  irh 

I'llslolll-llOl 

iiiei'cial  in 
|iortation  r 
laxity  tend 
no  new  orjr 
i'ii-<liiiiis  an 

III  com 

\  illc  sa.^■s 

Vonr  Exc 

jiiepaied  to 

\ijj;ilaiit  in 

ixistiii^  hiA 

llypatia  am 

vest  iH:ati  !!;[>; 

""«  tliat  III)  I 

r.iilislmcitt  .1 

were  heinir  i 

the  jrrcatest 

'C  il  apiiears 

!l<iii  titiil  much 

no  I  (fori  alia  I 

tl'iiis  „f  !/,(■  /, 

^\'e  rosj) 
action  of  '* 
"I'  tlie  tii-oi 
(lie  <'oiiden 
silde  there 
III.  The 
prevent"  tl 
ill  the  j'lii-i 
oiniissioii  tt 
the  l{(>yj,I 
<»lfeiidiii,o-  vi 
tioiis  aiid  i 
Kiii;:d(uii. 
"IIS  content 
tlie  iiiaiiitcn 
other  .yi-eat 
flic  oirciidiii 
^Kliary  aids 
"I'd  kc|,r  tli( 
fiiiiicd.     Tli( 
head  is  som 
fl'i-^:  (I)  a  . 
'I'ld  (2)  a  de 
"'  domestic 
^\'c  Ilil^■(' 
this  Prcrooj, 

the  resort  to 
'liiriiio'tlic  p 
to  sc(.  any  di 
'<'<'t  interpo.s 
"'••III,  and  th 
'•vthe(;ovei 
'hoice  or  disi 
f*^  the  debatt 
-^Jftiimeiitj  a.« 


KAILlRi:    or    (JKKAT    I51UTA1N    TO    rCLl'IL    ITS    DITIKS. 


IC") 


sv^liiii  wdiiltl  i('i|iiirt'  a  railioiil  rcforiii  in  mdcr  to  prcvfiit  tlu'  fxiioif  of  contrnliiiiiil  of 
u.u.  I  uIjhII.v  foiu'cilr  that  tlio  lux  iiH'thod  of  <lisi»iitt'h  jiikI  control  on  tin-  piirt  of  tln^ 
c  iistoiii-lionsc  iintlioiilics  which  has  hi-ionic  usual  in  tho  interest  of  an  nufettered  coni- 
incrcial  intercourse,  bars  the  euer<;<'tic  carry  in;;  out  of  a  measure  prohiliitin^  the  ex- 
iMirtatiou  of  eontrahaiKl  of  war.  ltnt,<Mi  IIk^  other  haiul,  I  think  tlie  very  fact  of  sneh 
laxity  tend-  to  show  that,  for  the  luirpnse  of  leinhrin^  an  Order  in  C'onueil  etlectual, 
iM)  new  or;rauization  would  lie  reijuired.  Imt  sinijily  more  striu;^eut  iustrueticuis  fiu'  the 
I  n-itoms  and  hailior  antlwuities,  lemiudin^f  them  of  the  existin;;  regulations. 

Ill  coiicliuliiijn' lii.s  voi>ly  iiiMlcr  date  of  0(!t()lH!r -1,  l.S7(>,  Lord  (irair 
\  illc  says : 

Your  Kxcelleney  will,  1  think,  admit  that  though  Tier  Majesty's  (Jovermuent  are  not. 
|)ii'i)aretl  to  change  the  )»ractice  of  the  country  in  regard  to  neutrality,  they  have  heen 
\jgiiautin  watching  ami  checking  any  symptoms  <d'  violation  by  Ihitish  sultjects  of 
ixisting  law.  Sonu-  weeks  hefore  your  excellency  drew  attention  to  the  cases  of  the 
llyiiutia  and  X<useuian.  the  proper  antluirities  of  tliis  country  had  heen  engaged  in  ii\- 
Vfstigatiug  them,  and  the  irtilchfiilntxH  shoini  on  tltoxr  ofcaHioiix  Ikih  dduhllisH  bini  the  na- 
«H(i  lliut  )io  tittrmpt  ban  htrii  mailf  to  sill  or  dixpatr.h  rcssils  in  contravvntion  of  thv  I'orviijn 
Eiilhtmint  .let.  A  reixut  which  had  reached  Her  Alajesty's  (Jovernment  that  attemiits 
were  being  made  to  enlist  Irishmen  for  military  service  in  France  was  acted  up(ui  with 
the  greatest  luomiititude  liy  the  authorities  of  the  Home  Olliee,  even  at  a  time  when, 
us  il  iijiiietifs  from  the  note  which  yon  uddrinxnl  to  mr  on  the  Wth  inxtaut,  it  did  not  appear  to 
iliiii  that  mnch  importanir  nuts  to  he  attached  to  the  rnntMrs.  I  can  asxnre  Yonr  Ej'celli  ncii  that 
iiii  effort  shall  hereafter  he  spared  to  deal  promptlfi  with  any  actual  or  contemplated  infrac- 
timis  if  the  Ian'. 

Wo  resiHH'tfiilly  submit  that,  in  the  failure  of  the  di.spositioii  and  the 
action  of  ''due  diliju'ence  '  in  tlie  niatter.s  in.sisted  upon  under  this  head 
of  tiie  ar<;uinent,  the  eonduet  of  (Jreat  IJritain  merits  and  must  receive 
tlie  condemnation  of  tlie  Trihunal,  and  inu.st  render  that  nation  respon- 
silde  therefor  to  the  United  States  in  its  award. 

111.  The  next  };reat  failnn;  of  Great  r.rit.iin  '*  to  use  tlue  dili<;ence  to 
prevent  "  the  violation  of  its  neutrality,  in  the  matters  with- 
in the  jurisdiction  of  the  Tribiuial,  is  shown  in  its  entires  •i^'lt"V,V\v''nu'u- 
omission  to  exert  the  direct  JOxecntiv*' authority,  lodj;ed  in 
tlie  lioyal  Prerogative,  to  intercept  tli(>  preparations  and  ontlits  of  the 
(ilfeiidiiiin'  vessels,  iind  the  contrilmtory  provisions  of  armament,  muni- 
tions and  men,  which  were  eiiiitt«'d  from  Aarious  i>orts  of  the  United 
Kiiij:dom.  ^\'o  do  not  find  in  the  IJritish  Case  or  Counter  Cu.se  any  seri- 
ous contention  i»ut  that  such  itoweis  as  pertain  to  the  Prerojjativ(\  in 
the  iiiaiiiteuance  of  international  relatiwas,  and  are  exercised  as  such  by 
other  ;4reat  Powers,  would  have  jn'eveiited  the  eseai)e  of  every  one  of 
tlu,'  ()lfeii<lin.u  vessels  cmitttMl  from  l>iitis]i  jjorts.  and  ])recluded  the  sub- 
sidiary aids  of  warlike  equipment  and  supplies  which  set  them  forth, 
and  kept  tliem  cm  foot,  for  the  maritime  hostilities  which  they  main- 
rained.  The  contention  of  the  r>ritisli  Case  and  Counter  Case  on  this 
head  is  .some\\liat  indelinite  and  uncertain,  but  substantially  conu's  to 
this:  (1)  a  d'sparajicmeut  of  the  vi^or  and  extent  of  this  J'reroj;ative  ; 
and  (L!)  a  dei>recation  of  its  vioorous  or  extensive  exercise,  lor  reasons 
ol  domestic  int«'rest  or  policy. 

^\'e  have  j^ixcn  full  ecmsidt'iation  to  the  question  »»f  \ho  posscssimi  oi' 
this  Prerofiative  authority  under  the  head  (levotetl  to  the  subject  as  a 
jiniiiosifion  <>/  hiir,  iwul  have  called  the  atteiilmn  of  the  Arbitrators  to 
the  re.sort  to  it,  from  time  to  time,  taken  by  Her  Majesty's  Covernment 
ilniiii<i,'  the  ])r()«;ress  of  the  transactions  under  review.  We  are  unable 
to  see  any  discrimination  between  the  occasions  and  the  means  for  «li- 
lect  interposition  of  this  power  of  the  (loveinment,  a.s  we  insist  upon 
tlu'iii,  and  the  occasions  on,  and  means  l)y,  which  it  was  actually  api)lied 
hy  the  (iovernment,  exci'pt  as  such  di.serimination  was  controlled  by 
^•lioice  or  disi)osition.  We  be<i;  the  careful  attention  of  the  Arbitrators 
to  the  debates  in  I'arliament,  cited  in  note  l>  of  the  Appendix  to  this 
Arf^nment,  as  beariii«>- upon  this  (piestion  of  the  i'reroiuativeof  the  llrit- 


l(w; 


ARCJUMEXT    OF    THE    I'N'ITEH    STATE^ 


isli  (Jrown  in  all  matters  ()f  intornational  o1)li;;ati<>n.  Those  debates  arc 
not  lel'erred  to  by  us  for  the  sake  of  thi'  individual  opinions  or  reason 
ing  of  the  eminent  nuMubers  of  various  British  administrations,  and  of 
the  leadiu}?  niembers  of  rarliament,  that  took  i>art  in  them,  l^aeh  of 
these  debates  is  upon  an  occasion  of  definite  uctioii  by  J'arliament  on 
the  subjects  before  it,  which  commits  the  national  will  and  authority  in 
supjmrt  of  the  propositions  insisted  upon  in  the  dibates,  an«l  in  the 
sense  in  which  we  insist  upon  them  here. 

IJut,  manifestly,  there  is  but  one  answer  that  this  Tribunal  can  accept 
for  the  omission  to  use  the  Koyal  Prero*rative  in  rejjulation  and  control 
of  the  situation  of  lu'utrality,  which  had  been  prodiu'cd  by  its  inter 
vention,  either  in  respect  of  its  debility  or  the  impolicy,  Ibrdonu'stic  na 
sons,  of  resorting'  to  it.  This  answer  is,  a  supply  .»f  the  power,  thus 
failing;'  or  intermitted,  by  other  forms  of  accredited  and  safe  authority 
that  was  also  scasoiudtlr,  uppropriafc,  and  (uhiiuatv.  This  brin<»s  us  to 
the  consideration  of  the  mode  in  which  existinj^  .statiiiDrtf  powers  were 
Avielded,  and  the  plenary  authority  of  Parliament  to  improve  or  extend 
them,  was  dealt  with  by  Her  Majesty's  (lovernnu'nt. 

IV.  The  insuHlciency  and  ineflicacy  of  the  rorei^n  Knlistment  Act  ot 
Great  Britain,  in  force  durinj;-  the  whole  period  t»f  the  American  llebel 
lion,  if  it  included  the  whole  prcventire  power  jMvssessed  by  Jler  IMiiJ 
esty's  (M»vernment  for  thcfultillment  of  the  duties  prescribed  by  the 
Three  Kules  of  the  Treaty,  are  both  undisputed  antl  indisputable.  The 
absolute  omission  from  its  provisions  of  all  Ivxecutive  autliority,  except 
in  subservience  to  the  jndicial  proceedings  and  punitive  i)nr[>oses  ol 
the  law,  furnishes  to  our  minds  a  strouj^  argument,  if  any  further  were 
needed,  that,  as  was  held  in  therarliamenfary«liscussion  which  attended 
its  passage,  its  provisions  were  punitive  and  punitive  only,  htTitusctlw 
direct  authority  of  interception  and  prerention  was  possessed  by  the 
Crown. 

But  if,  in  addition  to  this  debility  of  the  Statute  as  a  resort  for  srn- 
.son<(hle,  appropriate,  and  adequate  means  of  fullilling  the 
international  duty  in  question,  apparent  upon  any  construe 
tion  of  the  Statute,  we  take  the  Statute,  imimverishedand 
enuisculated,  (I,)  by  judicial  construction  of  its  narrow 
reach  to  punish  and  deter;  (2,)  by  the  impossible  require 
ment  in  the  matter  of  evidence :  that  is  to  say,  the  require 
ment  of  voluntary  evidence  sufficient  to  eonviet,  before  accusation  or 
arrest  of  person  or  vessel;  and(b,)  by  the  timidity,  alike  of  Cabinet  Miii 
isters  and  Custom  ITouse  Ollicers,  and  all  intermediate  Ivxecutive  fune 
tionaries,  in  undcrtakimi  the  execution  of  the  law,  for  fear  they  should 
tlitm.'Hdves  be  berated  for  their  audacity,  or  condemned  in  damages  as 
trespassers  and  law-breakers,  fox"  daring  to  interfere  with  the  domestic 
liberty  of  British  subjects  to  engage  in  war  against  American  commerce, 
while  their  (rovernment  was  at  peace  with  the  United  States — takiiij;. 
■we  say,  the  Statute,  as  thua  construed  and  administered,  there  can  he 
no  pretension  that  the  furnishing  of  a  Government,  as  the  sum  of  its 
authority,  with  powers  so  nnseasonalde,  inappropriate,  and  inadeiiuoU\ 
for  the  fulfillment  of  this  intermitional  obligation,  was  compatible  with 
that  obligation  as  enjoined  by  the  Three  Bnles  of  the  Treaty. 

!Now,  the  true  njeasure  of  the  force  and  value  of  a  statute  as  an  ex 
l^ression  of  the  sovereign's  will  and  purpose,  is  to  be  found  in  its  judi 
cial  interpretation  and  its  practical  execution.  Some  pains  have  been 
taken  in  the  British  Case  and  Counter  Caso  to  insist  upon  the  ecpuility 
with,  or  perhaps  the  superiority  over,  the  Neutrality  Act  of  the  United 
States  shoNva  in  the  Foreign  Enlistment  Act  of  Great  Britain.  Compared 


'Ilip  Korfiiiu  Knli-*f. 
in^nt  \it  \v,i.*  all  in 
Mitficicnt  iiiean-*  b>i' 
pertonninit  intern:'- 
tional  dnti*-",  and  \\-* 
cliicarv  "  .n  iliuiiii 
jshfd  by  iiiilii  lal  i"n- 
!*Iriictmi(  iind  nllirial 
r*.''iuiM'int*nr'- 


l'AIH:i{K    OF    (JREAT    IlKITAIN    TO    ITLFII,    ITS    DITIKS. 


1G7 


till-      ;ii  I      iiikI       th'f 

A'li  Til  nil  KfiitMti*  a* 

I  Mii-trit  'il     :iM<l      ikI- 


ii|K)n  tlu'  text  of  their  provisions,  tiie  ^reat  feature  of  pitrcntirv  power 
ill  tlie  Anierieaii  statute,  stamps  with  inanifest  distiiH'tioii  these  two 
systems  of  h'fjishitioii.  lint  eomjiareil  in  thr  i)raetical  ellieieney  wliitrh 
|ii«li"i:il  interiiretation  and  administrative  cxetMition  have  imparted  to 
tlu'  American  statute,  as  a  part  of  its  snhstantivi^  vip;or  and  value,  and 
ill  the  debility  hy  the  sanu*  means  infused  into  the  Hrilisli  Aet,  they  are 
sciireely  to  W  rero^jni/cd  as  paraUel  h'fiishition. 

Certain  <i:r«'at  f<'atures  mark  tlui  American  A(!t  as  a  woikinj;  means  to 
tlie Government  for  fidtillin<^  tlie  international  oh]i;;ations 
witliin  its  purview  : 

1.  Th«»  direct  and  unlimited  administrative  power  vested 
in  liie  ['resident  as  tlui  Executive  head  of  the  (lovernment, 
to  intercept,  arrest,  and  prevent,  by  strony;  haiul,  the  nuMlitatetl  interna- 
tional injury,  by  <letainin<;:,  upon  discretion,  suspected   instruments  of 
such  jnirposed  injury. 

'1.  The  personal  intli(;tions  and  the  ju'operty  forfeitures  visite<l  upon 
participation  in  the  oti'ense  at  any  sta^^e,  an<l  in  any  def^ree,  Iionrirr 
far  sliio't  of  ntmph'tion  in  Jiwl,  or  hoircrer  small  in  (Ujcncy,  by  the 
Aiiieriean  Act  as  interprete«l  and  applied^  proritivd  the  project  or  pur- 
pose when  completed  and  combined  is  ilh^j^al,  f^ave  tlie  (lovernment  the 
means  of  pitnititr  intervention,  with  etfect  and  in  time,  to  intercept 
iiiul  frustrate,  even  by  judicial  means,  the  i)rojected  schemes. 

">.  The  inifiatio;?  of  Judicial  procicedinjjs  at  early  stages  of  illegal 
enterprise  gave  at  on(!e  the  opportunity  to  coerce  proof  by  compulsory 
process,  and  made,  it  the  lu'cessary  interest  of  the  parties  interfered 
with  to  establish  the  innocent,  or  abindon  the  guilty,  design. 

4.  The  American  statute  stimulated  the  zeal  of  direct  private  interest 
to  the  service  of  conveying  information  and  securing  evideiM!c  to  for- 
feit the  otiemling  vessel,  by  rewarding  this  service  l)y  the  payment  of 
one-half  of  the  forfeiture  to  the  informer.  The  intluencc  of  such  a 
t'oatare  in  the  risk  of  illegal  outHts  of  great  and  ])owerful  cruisers,  worth 
hundreds  of  thousands  of  pounds,  is  threefohl  in  its  operation  :  (1)  'I'he 
direct  exposure  of  the  enterprise,  while  in  i)rogress,  to  betrayal  and 
conviction,  by  this  appeal  to  the  interests  of  some  or  one  of  the  hundreds 
of  subordinates,  in  the  conlidence  of  the  transaction  by  necessity.  (2) 
The  discour  igement  to  the  offending  belligerent  to  umlcrtake  an  enter- 
prise, thus  in  peril  up  to  the  moment  when  it  might  have  absorbed  the 
lull  investment  of  its  funds.  (.{)  The  danger  to  the  neutral  ship-builder 
from  this  i)rolonged  nuMiace,  from  the  (Mipidity  which  might  strike  him 
wlien  the  blow  would  fall  upon  liis  own  capital,  wholly  uncovered  b^' 
payments.  It  is  not  too  much  to  say  that  proJe<'ts  of  the  nmgnitude, 
l)oth  in  value  and  in  length  of  time,  involved  in  the  building  of  a  Florida 
or  an  Alabama,  were  little  likely  to  risk  the  danger  of  a  casual  or  a 
professional  inlbrmer  under  such  an  inllannnation  to  his  zeal. 

■").  The  exclusive  Judicial  enforcement  of  the  American  Act  isconfuled 
to  tin;  Federal  ('(uirts  in  their  admiralty  Jurisdiction,  as  courts  known 
to  and  governed  by  the  law  of  nations,  and  not  to  the  local,  domestic, 
and  common-law  tribunals  of  the  States.  The  Constitution  of  the 
United  States,  with  sagacious  conii)rehension  of  the  duty  and  the  difti- 
cultyof  maintaining  a  Jurisprudence  in  questions  of  international  relation, 
trustworthy  to  and  trusted  by  the  interests  of  foreigners  and  foreign 
'States,  has  vested  the  exclusive  admiralty  Jurisdiction  in  the  Courts  of 
tlie  United  States,  and  by  this  Jurisdiction  the  forfeiture  of  ships  under 
the  Neutrality  Act  is  adjudicated. 

We  refer  the  Tribunal  for  a  most  competent  authority  on  this  whole 
subject  of  American  Jurisprudence  and  its  methods  of  securing  the 


'M    iti 

s. 

"M 

'* 

iu.i 

ff\'S 

m^ 

■ 

; 


1G8 


AK(aMi:NT  or  the  rNiTi:i»  statks. 


juarticiil  rud  in  vi<'\v  by  cviMi  jiulicial  nioaiis,  to  tho  note  ni'  'Slv.  I)aii;i. 
tlM-  Icai'iu'd  (■oiiiincntator  on  Wiicaton,  m  liicli  is  printed  in  full  in  vol. 
\'II  ortlu'  American  Appcnilix,  pi>.  11  — (S.     Wi' quote  a  few  passaj^fes. 


As  to  flu!  i)ii'|iariii<;  (if  vrsxils  witliiii  i>iir  Jurisdiction  litr  sulise<|iu'iit  lio.stilf  opt  rn- 
tioiis,  tiii^  ti-st  \v)-  liiivc  ii|>[ilii-il  lias  not  Iii-lmi  tht!  extent  and  cluirarter  of  the  ]irc|iai':i^ 
tioiis,  lint  tlic  intent  witJi  \>iii*-li  tlie  particnlar  acts  arc  done.     If  any  |ic-i 


No  cases  Inive  arisen  as  to  tlie  coniliination  of  materials,  wliieli.  scparate<l,  cannot  iln 
a4ts  of  hostility.  Init  nnited  eonstilnte  a  iiostile  iustrnnientality,  for  tin;  intent  cov.  is 
all  cases  and  fnrnislies  tin;  test.  It  ninst  In;  immaterial  where  the  combination  is  te 
take  jdiice,  whether  here  or  el.sewhere.  if  the  acts  done  in  rmr  territory,  whether  acts 
of  hnildin^,  titling,  arm  in.;,  or  of  procuring  materials  for  thest;  acts,  he  doin>  as  part  nt' 
a  plan  hy  which  a  vessel  is  to  he  sent  ont  with  intent  that  she  shall  be  employed  tc. 
••riiise. 


Observe,  now,  the  practical  operation  of  tlio  Forei<;ii  I'lnlistment  Act  its 
it  wa.s  worked  by  llei  3IaJe.sty*s  (lovernnient  in  rullilbnent  of  its  obli;j;a 
tion  ''to  ii.se  diu'  (lili}j;ence  to  i)revent"  the  iiifraction.s  of  neutrality  piiic 
tieed  to  the  i>rejudiceof  the  United  .States. 

1.  .1/.'  ]>reveiHive  intervention,  in  that  name  aiidof  tliat  desio'u,  wase.v 
eluded  from  the  le.soiirce.s  of  the  hiw,  H  was  eontined  to  puid.shnu'nt  ot 
vmnmittcd  ollenses.  Tiie  personal  inllietions  weie  not  severe  enou;.;li  tn 
deter  :  and  the  i»rooeediii,<'s  to  forfeit  ii  ji'uilty  vessel  for  a  ooniinittod 
offense  mijjht,  inci<leiitally,  by  its  judicial  iirrest,  thwart,  or  delay  lict 
injurious  cruise:  but  only  incidentally.  The  itiinitive  pros(>('ution  foi 
tbrfeiture  mij;ht  have  place  (ij'tii\  as  well  as  in  anticipation  of,  the  hostile 
cruise. 

L'.  It  was  held  that  armoKj  Ihr  nsxel  itself  ivithin  ihe  jurkdh-t'wn  was 
essential  to  guilt,  and  that  any  pr(»ject  for  the  cruiser  tJiat  proposed  to 
take  out  her  armament,  her  munitions,  or  her  men  by  separate  bottoms, 
like  the  Alar,  or  the  Hercules,  or  the  IJahanui,  or  the  Latirel,  or  tlio 
Prince  Alfred,  was  not  within  the  penalties  of  the  law.  These  supiily 
vessels,  in  turn,  Avere  safe  under  the  law,  as  they  were  not  intended  ''to 
crui.se  or  commit  hostilities  against'-  the  United  States.  Indeed,  under 
this  construction  of  the  act,  there  seemed  to  be  nothing  to  prevent  tlic 
intended  crui.ser  from  taking  in  tow  the  tug  which  had  its  armament, 
its  munitions,  and  it.s  men,  for  tran.s.shipment  on  the  high  seas.  For  tlii."' 
purpose  would,  if  pro  veil,  f/e;/jy«.s^/(ffe  that  the  cruiser  had  not  taken, 


Page  3.5. 


^  Pasie  :{7. 


I'Aii.riM:  or  (iiniAT  mhitain    to  rrr.iMi.  its  im  tii:s. 


H'S 


and  <li(l  not  iii-o|>(is(>  to  take,  any  aiinanicnt,  tS:c.,  witliin  tlu'.jtirisiliclion, 
and  that  tlic  tn;>'  was  coining  ItacU,  and  liad  no  ''  intent  tu  cruise  or 
iMiiindt  Iiostilitics." 

;t.  It  was  constantly  enjoined  Iiy  the  (lovernnient  npon  all  odieials, 
tliat  they  ninst  he  extremely  raret'ui  not  to  atU'utjtt  to  int<'rleie  with  the, 
Ireedoni  ot"  these  snspeeted  enterprises,  unless  they  ha<l  in  hand  volnn- 
tcer  «'vi<lence  sntlieit'nt  to  seeniv  snceess  ;  lor,  otherwise,  they  aiul  their 
>iiperiors  would  be  exposed  to  heavy  daniaH;es  lor  lailnre. 

I.  It  was  made  very  prominent  that  dt'inonstration  of  the  wailike 
liiiild  or  titness  of  the  crniser  wonhl  not  procure  :i  Ibrleitnre  without 
satisfactory  proof,  in  adntniT  of  any  ff<Y,  of  the  conscious  intent  to  which 
a  jury  could  not  shut  its  eyes.  It  was  then  held  that,  when  the  intvui 
was  made  manliest  by  the  inception  of  the  cruise,  as  on  the  trial  of  the 
Florida  at  Nassau,  no  conviction  coidd  take  place,  becaus«^  the  warlike 
Imild  and  litments  having'  occurred  in  the  home  port  of  liiverpool,  iunl 
the  demonstration  of  intent  in  a  <'olonial  port,  the  actual  cruise  must  be 
sntfered  to  jjoon  unimpeded.  When,  however,  the  ]>rincii)al  law-olVu'crs 
of  I ler  Majesty's  (lovernment  attempted  to  n-form  this  administration 
of  the  law,  the  princijUe  that  the  fidl-blown  consumnmtion  of  the  enter- 
|irise.  by  the  cruiser's  takinj;'  the  seas  under  a  commission,  protected  it 
tVoni  any  further  judicial  scrutiny,  barred  all  further  proc«M'dinf;;s. 

We  olfer  to  the  attention  of  the  Arbitrators  some  extracts  from  ollicial 
papers  relat''ijif  to  the  cases  of  the  Oreto  (or  Florida)  and  Alabama,  as 
instances  of  the  system  of  the  administration  of  the  Foreij^n  lOnlistnient 
Act  of  which  we  are  now  complainin<;',  and  which  we  alsi>  conceive  t«) 
tiunish  a  fair  illustration  of  tin*  {general  inellcittual  nature  of  the  action 
and  result  in  all  the  attempts  to  enforce  it. 

On  the  Kith  of  June,  ISiL*,  the  qucistion  beinji;-  ujion  the  seizure  of  the 
Oreto  at  Nassau,  (lovernorKayley  wrote  toCoinmander  llickley,  in  part 
as  follows : 

Tlif  Ort'to.  as  yoii  iirc  awiirc,  lias,  in  (Ict'ci't'iicc  to  your  vonionstraiicrs  anil  my  ordtTs- 
iliscliar^i'il  hi'i' car^'o  of  siicll.  shot,  and  annuiinition,  and  is  ready  to  clear  in  liailast- 
Slie  lias  tlins  divfsted  lieiselt'  of  tile  eliaiaeter  of  an  aiiiied  vessel  li-avinj;  this  |i(irt  fof 
licllijieieiit  ])nriioses.  I  do  not  think  it  eonsisteiit  with  law  or  i>nUlic  ]ioliey  tiiat  she 
^lioiild  now  lie  seized  on  the  hypothesis  that  she  is  elearinj;  out  for  the  iinipost!  of 
Mriiiiii;f  herself  as  a  vessel  of  war  beyond  tlu*  limits  of  the  harhor.  Wo  have  done  onv 
iliitv  in  seeing'  that  she  <loes  not  leave  the  harbor  ei|ni])|)ed  and  iire])ai'ed  to  aet  olfeii- 
^ivily  a;;ainst  one  of  two  bellij;erent  nations,  with  eaeh  of  whom  (Jreat  IJritaiu  is  at 
pcai-e. 

And  if  she  has  still  any  siieh  intention,  an  intention  whieh  cannot  be  fnllilled  within 
the  harbor,  I  think  this  conid  be  etVectnally  thwaited  by  <;iviiiy;  instructions  that  the 
vi'sscls  whieh  are  su|>|)osed  to  be  freijihted  with  her  arms,  and  to  be  ]U'ei)ared  to  ijooul 
«itli  her.  should  not   leave  the  harboi-  within   foitv-ciiiht  hours  alter  the  ( )reto  has 

left   it.l 

On  tile -1st  of  dune,  IStL*,  (lovernor  llayley,  after  detailinji'  certain 
incidents  which  had  taken  place  in  rc}iai<l  to  the  Oreto  (Florida)  at 
Xiissaii,  thus  reported  to  the  J>iike  of  Newcastle: 

7.  Tliroughont  these  oceurrencivs  I  was  averse  from  iiroceediim  to  extremilies.  \ot 
tliiit  1  considered  the  conduct  of  the  Oreto  to  be  entirely  fret^  from  snsiiicion,  oi'  indec'd 
tiDiii  discourtesy  to  a  neutral  <fovernnient.  IJiit  I  was  uuwillinjf  to  assume  a  hostih^ 
iiir:  and,  moreover,  I  felt  that,  however  susj)icious  appeiirauces  were,  it  jni^lit  be 
•  '"cdinf^ly  dillicult  to  bring  either  the  Oiotoor  her  crew  within  the  seo[ie  of  the  For- 
'■i};n  1  'ilistmeiit  Act. 

'^.  It  when,  liavinj;  been  several  times  dissuaded  by  uu>  from  seiziu<;  the  vessel, 
;  I'.'l  !i:.vinjf,  after  seizure,  released  lier  in  deference  to  my  views.  Captain  llickley,  in 

-  I'  tt  'r  of  Kith  .Tuue,  reiterated  the  expression  of  his  professional  opinion,  not  mily 
liia;  tlie  Oreto  was  equipped  as  a  vessel  of  war,  but  that  she  could  be  made  ready  for 
I'iittle  with  the  enemy  in  twenty-four  hours;  that  other  vessels  then  in  the  harbor 
could  steam  out  with  her,  and  help  to  arm  her  withiu  a  few  miles  oti'  this  port ;  and 


'Brit.  App.,  vol.  i,  pp.  '2 1, '2"). 


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170 


ARGl'MEXT    OF    TlfK    I'MTKI)    STATES. 


I 


that  lier  roal  di'Mtiiiation  was  opoiily  talked  of,  I  tlioiislit  tliat  a  strong  prima-fiicir  case 
was  ina(l(!  out  for  a  Judicial  iuvostif^atioii,  cvoii  altliough  tlio  cvideuco  were  insuffi- 
cient to  warrant  lun-  coudcuiiiatiou.  And  I  tlioujj;lit  it  hotter  to  sanctiou  an  appeal  to 
the  law  ill  favor  of  our  neutrality,  and  in  dt^forenee  to  the  lionest  convictions  of  :i 
<i;allant  and  exiierieneed  otHcer,  than  to  allow  the  Oreto  to  leave  our  shores  unclial- 
Jeiii^ed  and  unolistrueted  on  an  expedition  of  pillaj^c,  piracy,  and  destruction. 

i).  These  rellections  were  strenjjtheued  hy  otlwns.  I  felt  that  if  the  (3reto  weni 
jillowed  to  take  in  arms,  ammunition,  and  a  crew  here,  a  similar  impunity  must 
h»^  in  I'litiire  conceded  to  any  other  vessel  Ixilonifiiiff  to  either  of  the  two  hellij^ereiit 
states.  The  consequences  of  ih-alin;!;  out  this  even-handed. justice  would,  in  the  exist- 
ing state  of  ]iopular  feelinj;,  ho  hi<jlily  inconvenient  and  emharrassinjj;.  The  boon  oli- 
taiiied  by  a  Confederate  vessel  woiihl  he  claimed  by  a  Federal  vessel.  If  {i;raiited,  it 
would  be  }j;ranted  j^rud;!;in<j;ly  and  sulkily,  and  it  was  more  likely  that  it  would  not  !»' 
jjrantcd  at  all ;  Ikmico  would  arise  disputes.  Jealousies,  and  au<?ry  altercation.  More 
than  this,  we  liav<i  reason  to  believe  that  armed  Federal  vessels  are  lying  at  a  very 
short  distance  from  this  jiort.  *  '  *  The  refusal  to  accord  to  northern  vessels  the 
same  indulgence  which  has  been  accorded  to  those  of  tin;  South,  might,  under  these 
circumstances,  jirovoke  an  atl'ray  lietween  the  shi|)s  of  the  two  contending  federations, 
and  involve,  not  only  this  colony,  but  even  the  mother  country  in  ii  very  serious  col- 
lision. 

I'i.  Your  Grace  will  sec  that  it  is  easy  to  do  very  much  in  the  way  of  eciuipping  a 
vessel  for  hostile  ]>nrposes,  arming  Inn',  and  enlisting  a  crew,  without  establisliing  ii 
Ciise  of  such  strong  testimony  as  would  Justify  her  condemnation  by  a  court  of  eoin- 
l)etent  Jurisdiction  ;  iind  although  it  is  repugnant  both  to  our  policy  and  our  sense  ot 
Jiistii^e  to  strain  the  letter  of  tlie  law,  even  on  the  side  of  a  reasonable  inference 
against  the  rigid  rules  of  technical  evidence,  yet  it  is  easy  to  see  that  a  strict  ad- 
herence to  these  rules  may  be  susiiected  to  be  tin;  result,  and  may  produce  the  fruits, 
of  a  deliberate  collusion  with  the  enemies  of  a  State  on  terms  of  amity  with  our  own 
country.' 

On  the  30tli  of  June,  1802,  the  evidence  in  regard  to  the  x\.Uibaiii;i 
beinji'  under  (consideration,  IMr.  llaiuel,  Solicitor  of  Customs,  thus  re 
ported  to  the  Commissioners  of  Customs  : 

The  officers  ought  not  to  move  in  the  matter  without  the  clearest  evidence  of  a  dis- 
tinct violation  of  the  Foreign  Enlistment  Act,  nor  unless  at  a  moment  of  great  emei- 
geucy,  the  terms  of  the  Act  being  extremely  technical,  and  the  reqiiirenients  as  to  intent 
being  very  rigid.  It  may  be  that  the  shiji,  having  regard  to  her  cargo  as  contrabaii'l 
of  war,  might  be  unquestionably  liable  to  capture  and  condemnation,  yet  not  liahli; 
to  detention  unde>  the  Foreign  Enlistment  Act,  and  the  seizors  might  entail  upon 
themselves  very  serious  consequences. - 

On  the  11th  of  July,  180.3,  Consul  Dudley's  letter  in  regard  to  tlio 
Alabama  being  under  consideration,  ^rr.  Ilamel,  Solicitor,  thus  advised 
the  customs: 

There  is  only  one  jiroper  way  of  looking  at  this  <iuestion.  If  the  C<dlector  of  Customs 
were  to  detain  the  vessel  in  (luestion,  he  would,  im  doubt,  have  to  maintain  the  seizure 
by  legal  evidence  in  a  court  of  law,  and  to  pay  damages  and  costs  in  case  of  failure. 
Upon  carefully  reading  the  statement,  I  tind  the  greater  part,  if  not  all,  is  hearsay  ami 
inadmissible,  and  as  to  a  part  the  witnesses  are  not  forthcoming  or  even  to  bo  named. 
It  is  perfectly  clear  to  my  mind  that  there  is  nothing  in  it  amounting  to  2»'i»i«-/"''"' 
ju'oof  sutilicieut  to  Justify  a  seizure,  much  less  to  support  it  in  a  court  of  law,  and  tlu' 
Consuls  could  not  exjiect  a  Collector  to  take  upon  himself  such  a  ri.sk  in  opposition  to 
rules  and  principles  by  which  the  Crown  is  governed  in  matters  of  this  na  ture.'' 

On  the  24:th  of  July,  1802,  after  tlie  Florida  had  been  seized  at  Xa.^i 
sau  on  ac(;ount  of  the  "duo  diligence"  of  Commander  Ilickley,  Vict' 
Admiral  Milne  thus  wrote  to  the  Secretary  of  the  Admiralty : 

I  abstain  from  giving  elfect  to  my  first  intention,  which  was  to  express  to  Commamh  r 
llickh!y  my  iijqtroval  of  the  zeal  displayed  by  him  on  this  occasion,  in  giving  pnml 
that  our  neutrality  between  the  belligerents  was  a  reality,  and  that  when  the  occasion 
offered.  Her  Majesty's  otiicers  were,  (piite  ready  to  accept  the  responsibility  of  actin;; 
as  in  this  case,  wherein  it  ajtpeanid  to  be  notorious,  however  iiicapabl  of  legal  iirooi 
it  may  turn  out  to  be,  that  the  vessel  in  question  was  fitted  out  in  a  British  port  as  an 
armed  Confederate  cruiser. 

Should  the  LawOIHcers  of  the  Crown  ho  of  opinion  that  the  seizure  was  il'ogal ;  thnt 
the  very  grave  suspicion  of  being  intended  for  (Miiployment  as  a  Southera  cruiser  ;  tlm 


'  Brit.  App.,  vol.  i,  pp.  1:5,  II. 
-  Brit.  Apj».,  vol.  i,  p.  1*J. 


='  Ibid.,  p.  187. 


FAILlTKK    OF    (JREAT    BKITAIN    TO    riTLFIL    ITS    DUTIES. 


171 


fact  i)f  tins  vessel  l)ein,<>-  fitted  in  every  n^spect  Iil<e  one  of  Her  Mujesty's  ships,  and 
^piM'iiilly  u(lai>te(l  fi)r  war;  lier  iirnianiisnt  rea  ly  to  l»ii  put  on  himrd,  with  a  crew  of 
Hf:'  men,  and  oflicers  of  tiie  Confederate  States  ri^ady  to  command  lier  ;  sliouhl  these 
fii' ts  he  insntheiont,  in  their  opinion,  to  justify  h'y;aily  and  technically  the  seiznre,  I 
vet  trust  their  Lordships  will  see  lit  to  exonerate  Commander  Ilickley  from  all  l>lame 
and  consetiuent  I'csponsihility.' 

On  August  L*."},  1802,  the  Iloineflovcrmnent  liaving  thoii;;lit  it  desira- 
blo  to  .send  some  Cusstoiii  ITonse  Ollieers  from  Liverpool  to  Nasau,  wlio 
could  there  j^ive  evidence  of  the  facts  whielt  had  taken  place  at  Jiiver- 
Dool  in  regard  to  the  Florida,  Collector  Edwards  thus  closes  a  letter 
to  the  Commissioners  of  Customs  : 

lam  satisfied  that  she  took  no  such  [warliki^]  stores  on  hoard,  and  indeed  it  is 
stated,  though  I  know  not  on  what  authority,  tiiat  her  armament  was  conveyed  in 
another  vessel  to  Nassau.  The  Hoard  will,  therefore,  perceive  that  the  evidence  to  he. 
ohtained  from  this  port  will  all  };o  t<t  jirove  that  she  left  Liverpool  altogether  unarmed, 
and  that  while  here  she  had  in  no  way  violated  the  law.- 

Oii  the  llth  of  August,  1802,  (Jovernor  Bayley,  reporting  the  release 

of  the  Oreto,  wrote  to  the  Duke  of  Newcastle  in  part  as  ibllows: 

I  do  not  think  it  likely  that  wn  sh.iU  ever  ohtain  stronger  jiroof  against  any  vessel 
than  was  produced  against  the  Oreto,  of  an  intention  to  aim  as  a  helligereiit.  There- 
tore  we  may  assume  that  no  jirosecution  of  the  sann!  kind  will  he  instituted,  or,  if  any 
lie  instituted,  that  it  will  fail.  The  natuial  consecpu'uce  will  he  that  many  vessels  will 
li  ave  England  i)artly  eciuipped  as  men-of-war  or  privateers,  and  intended  to  eomideto 
thi'ir  eciuipment  here.  IJut  the  notoriety  of  this  practice  will  induce  Federal  men-of- 
war  to  heiiuent  these  Avaters,  and  virtu.illy  hlockade  the  islands,  in  great<'r  force  than 
they  hav<!  hitherto  dont;;  and  when  they  are  assemhled  in  nnnihers,  it  will  he  vain  to 
reckon  on  their  ohserving  any  respect  for  territorial  jurisdiction  or  international  usage. 
I  slioidd  neither  he  surpiised  to  see  Fe<leral  ships  waiting  off  the  harhor  to  siMze  these 
Confederate  vessels,  nor  to  see  the  Conf»!derate  ships  engaging  with  Federal  men-of-war 
within  gunshot  of  the  shon;.  The  only  means  of  jireserving  the  i)eace  and  neutrality 
<if  these  waters  will  he  alibrded  by  the  presenci!  of  an  adeiiuate  naval  force.' 

On  the  2.jd  of  September,  1802,  (roveriior  Bayley  reported  in  part  as 

follows  to  the  L>uke  of  Newcastle: 

I  have  the  honor  to  inform  your  Grace  that  Uw.  Oreto,  after  her  liheration  hy  the 
admiralty  court,  left  this  harhor  three  or  four  weeks  ago;  and  that  she  is  sui>i>osed  to 
have  since  heen  finally  transferred  to  the  service  of  the  Confederate  States.  If  that  is 
.so,  .she  is  entirely  out  of  my  jurisdiction,  ami  I  could  no  more  legally  sid/.e  her  were 
,sho  to  re-enter  the  port  than  I  could  seize  any  man-of-war  belonging  to  thi' (iovern- 
nieiit  of  the  irnited  States.' 

;j.  Another  marked  trait  of  the  actual  administration  by  her  ^lajesty's 
Government  of  t\\e  punitive  features  of  the  ]'\>reign  Enlistment  Act,  is 
their  failure  in  the  clearest  cases  to  enforce  a  forfeiture.  When  we  con- 
.sider  that  the  pretensions  of  efliciency  in  this  act  are  confessedly  put 
ni)ou  its  terrors  to  evil-doers  and  the  dissuasion  from  illegal  projects  to 
be  thus  accomplished,  it  is  with  the  greatest  surprise  that  we  find  credit 
claimed  for  the  British  (lovernment  for  the  losses  and  sacrifices  which 
that  (irovernment  sustained  in  its  purchases  of  its  own  peace  from  its 
law-breaking  subjects  by  ])aymenr  of  damages,  by  agreement,  for  the 
prosecution  of  the  Alexandra,  and  by  payment  in  full  for  the  Laird 
lains,  instead  of  i>ersisting  in  their  forfeiture.  Not  more  intelligible  is 
the  claim  of  credit  for  the  cour.se  of  the  (lovernment  in  the  case  of  the 
Pampero,  where  the  forfeiture  was  admitted  by  the  claimants,  but  was 
never  brought  to  an  actual  .sale,  which  would  inHict  the  loss  of  its  value 
upon  the  guilty  projectors  of  its  intended  crui.se.  Certainly,  the  British 
trovernment  accomplished  the  detention  both  of  the  rami)ero  and  of  the 
huird  rams,  and  the  United  States  have  never  omitted  to  express  tlicir 
•satisfaction  at  this  real  benefit  which  they  received  from  the  success  of 


'  lu-it.  App.,  vol.  i,  p,  ya 

-Ibid.,  p.  ;J4. 


'Ibi;' 
^  Ibid. 


p.  70. 


-T^m 


172 


ARCIUMENT    OF   TME    CNITEI*    STATES. 


Her  Miijesty's  Clovernment  in  those  instiincos.  liat,  tbiit  the  puiiitivo 
tt'iTors  of  this  act  should  liavo  lost  the  exiimi)le  of  actual  forfeiture  to 
the  Kebel  resources,  or  to  the  ffuilty  JUitish  ship-buiklers,  of  the  jircat 
value  invested  iu  them,  and  that  the  liritish  (rovernment  should  have 
refunded  tiie  money,  exhausted  by  the  guilty  enterprise  of  the  Laird 
rams,  in  season  for  its  new  use  by  tiie  Kebel  agents  and  their  accomplicos 
in  the  same  illegal  service,  can  never  seem  to  the  United  States  a  valu- 
able contribution  to  the  elliciency  of  the  Foreign  Enlistment  Act  as  an 
instrument  of  punishment  of  these  proscribed  and  dangerous  proceed- 
in  g-s. 

These  various  traits  in  the  actual  dealing  of  Jler  ]\[ajesty's  Govern- 
ment with  the  Foreign  Enlistment  Act  as  an  instrument,  and  as  its  only 
instrument,  for  maintaining  its  neuiral  obligations  to  the  United  States, 
became  as  well  known,  and  were  as  clearly  appreciated  by  all  Her 
Majesty's  subjects,  and  through  all  her  imperial  dominions,  as  if  they 
bad  been  announced  by  a  Queen's  Proclamation.  No  wonder  that  a 
learned  Judge  of  one  of  Her  ^lajesty's  superior  courts  declared  that  a 
whole  fleet  of  ships  of  war  could  be  driven  through  the  statute !  That, 
fis  matter  of  fact,  a  whole  fleet  of  ships  of  war  was  driven  through  tiiat 
•statute,  is  in  proof  before  this  Tribunal. 

Upon  the  whole  proofs,  then,  and  in  their  api>lication  to  the  cases  of 
irit.-i,  r.in,..  i^ll  the  offending-  vessels,  we  coniidently  submit  to  the  Arbi- 
;;m,"o\u  [.T.'iinhu''.-  trators,  that  the  Foreign  I'^nlistment  Act,  as  construed  and 
ii,i,„  jiiiB,,,,  ■.  administered,  was  not  an  adequate  instrumentality  for,  and 
its  actual  employment  by  the  (Joverument  di<l  not  amount  to,  the  use  of 
"  due  diligence  to  prevent  "  the  violations  of  the  international  obliga- 
tions of  Great  Jbitain  to  the  ITnited  States,  wiiicb  are  now  under  ro 
view. 

AVe  have  never  been  able  to  appreciate  the  practical  difUculties  in 
l>reventing  the  emission  of  these  hostile  vessels  from  British  ports. 
They  were  a  long  time  iii  course  of  construction ;  they  were  long  uihUm 
the  actual  notice  of  the  Government;  its  apparatus  and  resources  for 
the  fulfillment  of  the  recpiired  duty  were  deliberated  upon,  explored, 
and  understood.  In  truth,  no  iwactical  diflicnlties  did  exist.  Bat, 
whethej'  or  no  this  plain  an<l  easy  execution  of  the  jtractical  duty  itselt 
could  not  become  uncertain,  dillicult,  and  even  impossible,  by  the  adop- 
tion of  theories  and  methods  and  agencies  which,  framed  only  dii'er.so 
intuitu,  naturally  ended  in  failure,  is  a  very  dillicult  (piestion.  These 
constant  failures  were  never  from  ignorance,  from  accident,  or  misfor- 
tune. They  were  not  like  the  failures  whi(;h  may  happen  under  any 
Government,  where  remoteness  of  ports,  impedinuMits  of  communication, 
obscurity,  an<l  insignilicance  of  the  projects  an<l  the  vessels  themselves, 
give  oi)portunity  for  concealment  and  surprise.  Such  are  the  instances 
industriously  collected  in  the  Jiritish  Case  and  Counter  Case  from  the 
earliest  years  of  the  existenc*^  of  the  Government  of  the  United  States. 
and  again  in  the  perioil  of  the  Spanish-American  and  J'ortnguesc- 
American  hostilities.  The  situations  are  very  dissimilar ;  the  conduct 
of  the  liritish  GovernnuMit  here,  and  of  that  of  the  United  States  at 
those  early  periods,  proceed  upon  very  ditt'erent  systems;  the  causes  ul 
failure,  as  bearing'  upon  responsibility  therefor,  are  entirely  distinct. 

It  is  ([uite  agreeable  to  be  relieved  from  puzzling  over  the  complexi 
ties,  and  delicacies,  and  obstacles  which  seemed  to  embarrass  ilfi 
Majesty's  Government,  under  Earl  Kussell's  management  of  this  inter- 
national duty,  in  reference  to  so  simple  a  matter  as  arresting  these 
groat  shi[)s  of  war,  the  Florida,  the  Alabama,  the  Georgia,  and  the  Shen- 
andoah, by  th(^  frank  and  practical  view  of  the  duty  and  the  task  ex 


FAILIUE    OF    GHEAT    BRITAIX    TO    FULFIL    FI'S    lH'TIFs. 


173 


picssed  1)3'  Earl  Granville,  in  rarliainent,  in  the  debate  on  the  Wash- 
ington Treaty.     Earl  Granville  said  : 

On  the  Olio  liaiiiL  notliiiif^  i,s  hd  easy  as  to  prevent  a  \t'ssi'l  of  tlio  Alabama  class 
cs('ni>iiig  tVoiii  our  si  m-cs.  and  the  ())\ly  loss  to  tht^  country  wliich  would  result  IVoni 
such  a  i»iev(Mition,  Viould  bo  the  small  aniount of  profit  which  the  individual  construc^t- 
iiij;  and  eipiipiiinfj  the  vessel  mi|i;ht  derive  from  tlie  transaction,  which  in  almost  every 
case  is  contrary  to  the  Proclamation  of  the  Queen.  ' 

Xov  are  we  able  to  see  how  Her  ^Majesty's  Government  can  eseai>e 
fioin  the  dilemma  whieh,  on  its  failure  to  stoj)  the  Florida  and  the 
Alabama,  and  its  easy  success  in  stopjtinpf  the  Laird  rams,  was  proposed 
to  it  by  Sir  Hugh  (now  Lord)  Cairns,  in  rarliament. 

What  will  yoti  say  to  the  American  Minister  now  :'  Do  not  you  suppose  that  (he 
American  Minister  will  come,  to  you  and  say,  "Vou  told  nie  last  year  that  uidess  yon 
liiiil  a  cas(;  for  seizure,  and  jiroof  i)y  ])roper  evit'c'nce,  you  could  not  arrest  a  shij)  at  all: 
that  you  could  not  detain  her.'  Althouj;h  you  admitted  that  the  facts  I  broujiht  l)e- 
I'ore  you  created  very  j;reat  susiiieion,  you  said  that  you  could  not  seize  the  Alabauia, 
therefore  you  could  not  touch  hei'.  JJut  look  at  what  you  did  in  .Septc.'uilier.  i'\)r  a 
whole  nu>nth  you  diitained  these  steam-rams  in  the  Mersisy,  while,  accordinf";  to  your 
()«n  words,  you  wen;  collectin^i'  (evidence,  and  emleavorinj;  to  see  whetlu'r  your  .sus- 
jiicions  were  Avt>ll  founded."  *  '  i  maintain  that  when  the  United  States  hold 
this  lanj^mige,  either  our  (iovt^rnment  must  contend  that  what  they  did  in  St!j)tember 
was  tniconstitutional,  or  they  ouj-ht  to  have  done  the  same  with  regard  to  the  Ala- 
haina,  and  are  liable.  - 

Y.  ]\Lanitestly,  if  the  Foreign  Enlistment  Act  of  Great  Britain  was 
tlins  inadequate  and  unsuitable,  as  an  etiicient  instrument  n...  „ .sM.t  • . 
ill  the  hands  of  the  Government  for  the  fulhllment  of  its  KlIl^m.-nrArt'Ti'";'. 

international  duty  to  the  United  States,  it  was  a  failure  in  -^'  i'"  '''i'«" 

the  "use  of  due  diligence  to  prevent"  the  injuries  now  complained  of, 
Jiot  to  obtain  from  Farliament  a  suitable  and  ellicient  act  for  the  fuHill- 
nient  of  the  duty.  The  demonstration  of  the  existence  of  this  obliga- 
tion, and  of  its  being  early  brought  to  the  notice  of  Her  ^Majesty's  Gov- 
orninent  by  the  United  States,  and  of  the  refusal  of  Great  IJritain 
to  meet  the  obligation,  is  comi)lete.  AVe  refer  the  Tribunal  to  a  state- 
incut  of  the  contemi)orary  correspondence  on  this  subject  between  the 
(rovernments,  and  a  menu)randum  of  the  action  of  Great  Britain  in  the 
matter,  after  the  close  of  the  Kebellion,  (tontained  in  Note  C  of  the  Ap- 
pendix to  this  Argument. 

In  strong  contrast  with  this  inaction  of  (ireat  Britain,  and  with  its 
instilication  by  Her  Majesty's  Government,  is  the  cour.se  cnntn>«  i«tw,...n 
taken  by  the  Government  of  the  United  States  in  17J)3,  at  ll:;;;;T;;,'I'i"t7.'. 
the  instance  of  Great  Britain,  in  1817,  at  the  instance  of  ;;;;;;;:;  "l^'';",,!,;''':^'' 
Portugal,  and  again  in  18;38,  to  meet  an  exigency  in  the  in-  '" "' 
torest  of  Great  IJritain,  for  tlie  maintenance  of  its  sovereignty  over  the 
<"anadiau  provinces. 

On  the  3d  of  December,  17M3,  President  Wa.shington,  in  his  mes.sage 
to  Congress,  after  stating  the  means  that  he  had  u.sed  to  maintain  a 
■strict  and  impartial  neutrality,  said : 

It  rests  with  tho  wisdom  of  Congress  to  correct,  improve,  or  enforce  this  pl.in  of  i)ro- 
ccdure,  and  it  will  ))robably  be  found  expedient  to  extend  tho  legal  code  and  Jurisdic- 
tion of  the  courts  of  tho  United  States  to  many  cases  whieh,  though  dependent  upon 
luinciples  iilready  recognized,  demand  some  further  provisions. 

When  individuals  shall,  within  the  United  States,  array  tliemselvos  in  hostility 
iigainst:  any  of  the  powers  at  war,  or  enter  upon  military  expeditions  or  (.'uterprises 
within  the'jurisdiction  of  the  United  States,  or  wliero  penalties  on  violations  of  the 
law  of  nations  may  have  been  indistinctly  marked  or  are  inadequate,  these  oH'enses 
•  iinnot  receive  too  early  and  close  an  attention,  ami  require  prompt  an<l  decisive 
ii'iiiedies. 


I 


m 


^■■- 


mm 


.\ppeiulix  to  this  Argumiiit,  Note  H. 


-Am.  App.,  vol.  V,  i>.  4.>l{. 


174 


ARGUMENT    OF    THE    UNITED    STATES. 


Oil  the  20th  oC  December,  181G,  the  diplomatic  iei)i'eseTitative  of  Tor- 
tujfal  thus  wrote  to  Mr.  Mouroe,  then  Secretary  of  State  : 

What  I  solicit  of  liiin  (tho  I'lcisideiit)  is  the  proposition  to  Coiifjress  of  micb  pro\  is- 
i<»tis  by  Iiiw  as  will  prevent  mich  iitteuipts  for  the  future.' 

Six  (hiys  hiter,  President  Madison  addressed  a  message  to  botli  Houses 
of  Congress  in  part  as  follows: 

With  ii  view  to  niaintaiu  more  effectually  the  respect  due  to  the  laws,  to  the  char- 
acter, and  to  neutral  and  pacific  ndations  of  the  United  States,  I  reconunend  ttt  tlit- 
consideration  of  Conj^ress  the  expediency  of  such  further  legislative  provisions  as  may 
he  re(|uisit(i  for  detainiiif^  vessels  actually  equipi)ed,  or  in  course  of  ecpiipiuent,  with  u 
warlike  force,  within  the  Jurisdiction  of  the  United  States;  or,  as  the  case  maybe,  for 
obtaininj^  from  tho  owners  or  coniiiianders  of  such  vessels  adeijuate  securities  against 
the  abuse  of  their  armaments. - 

At  the  same  time,  Mr.  INEonroe,  Seci<it?ry  of  State,  wrote  to  Mr.  For- 
.syth,  chairman  of  the  Committee  on  Foreign  Kelations: 

I  have  now  the  honor  to  state  that  tho  i>rovisions  necessary  to  m.ike  tho  lawsetfcet- 
ual  ayainst  (itting  out  armed  vessels  in  our  ports  for  the  purpose  of  iiostilo  cruising, 
seem  to  be : 

1st.  That  thoy  should  be  laid  under  bond  not  to  vi(date  the  treaties  of  the  United 
States  under  the  law  of  nations,  in  all  cases  where  there  is  reason  to  suspect  such  a 
purpose  on  foot,  includiuy  th"  cases  of  vessels  takinj^  on  board  arms  and  munitions  ot 
war,  applicable  to  the  equipment  and  armament  of  such  vessels  snbse<[nent  to  their 
departure. 

2d.  To  M"'est  the  Collectors,  or  other  lievenue  Ofticers,  where  there  are  no  Collectors, 
with  powei'  to  sejze  ami  detain  vessels  under  circunistaiu;es  indicatin<f  stronij  presunii»- 
tion  of  an  intended  breach  of  the  lasv,  the  d(  tentiou  to  take;  i)la(!e  until  the  order  of  tlic 
Executive,  on  a  full  representation  of  the  facts  had  thereupon,  can  be  obtained. 

The  existinj^  laws  do  not  <^o  to  this  extent.  They  <lo  not  authorize  the  demand  of 
security  in  any  shape,  or  any  interposition  on  the  part  of  the  magistracyas  a  preventive, 
when  therti  is  reason  to  suspe(tt  an  intention  to  commit  tin;  otlense.  I'hey  rest  upon 
the  general  footing  of  punisiiing  the  olfenst!  merely  where,  if  there  be  full  evidence  (if 
the  actual  jx^rpetration  of  the  crime,  the  i>arty  is  handed  over,  id'Utr  trial,  to  the  penalty 
denounced.-' 

The  cir^Mimstances  under  which  the  temporary  Neutrality  Act  of  1S38 
Mas  passed,  are  fully  stated  in  the  Case  of  the  United  States,  (p.  13'),) 
and  the  act  itself  can  be  found  in  the  documents  presented  therewith.^ 

Not  less  in  contrast  with  the  indifference  and  obstructions  with  which 
HerMnjesty's  Government  met  the  earnest  applications  of  the  Govern- 
ment of  the  United  States,  in  the  stress  in  wliich  it  was  placed,  for  an  im- 
provement of  the  Foreign  Enlistment  Act,  are  the  solicitude  and  attention 
bestowed  by  Great  Britain  upon  the  amendment  of  this  act  after  the 
rebellion  was  suppressed.  The  reportof  the  Royal  Commission, appointed 
to  consider  the  subject,  upon  the  defects  of  the  old  law  and  the  necessary 
amendments  to  give  it  due  vigor,  leaves  nothing  to  be  said  in  condem- 
nation of  the  persistency  with  which  Great  Britain  clung  to  it  during 
the  whole  period  of  the  liebellion.  The  promptitude  of  Parliament  in 
enacting  the  new  statute  upon  the  breaking  out  of  the  recent  war  be- 
tween l*russia  and  France,  has  already  been  referred  to,  and  is  exhibited 
in  the  extracts  from  the  debate  on  its  i)assage,  set  forth  in  Note  B  of  the 
Appendix  to  this  Argument. 

It  is  unnecessary  to  argue  that  the  passage  of  the  present  Foreign  En- 
listment Act  in  May,  18G1,  following  upon  the  Queen's  Proclamation  ot 
neutrality,  and  its  reasonable  enforcement,  would  have  precluded  the 
scandals  deplored  by  the  British  Government  and  the  injuries  suffered 
by  the  United  States  from  the  emission  of  the  Alabama  and  her  con 
sorts  from  British  ports.    The  text  of  the  act  carries  its  own  argument. 


v^^/ 


'  Am.  App.,  vol.  iii,  p.  .")41. 
■  Ibid.,  p.  ryi'i. 


■  Ibid.,  p.  ^4'i. 
••  Ibid.,  vol.  iv,  p. 


G-2. 


For- 


13;;.) 


K.'iilnri-  in  dm 

KCIli'i'    .-tftiT     thf     t; 
■itl"'  >>(    tll'MTlU.-'f-'r; 


III! 


FAILURE    OF    GRKAT    BRITAJX    TO    FULFIL    LI'S    DUTIES.       175 

Well  might  that  eminent  publicist,  Philliniore,  itn mediately  after  the 
I»as.sago  of  this  act,  "rejoice  that  the  English  Government  has,  by  the 
statute  of  this  year,  strengthened  the  hands  of  the  Executive,  and  given 
{jreater  force  and  prominence  to  the  maxim  tlu.t,  with  respect  to  the 
external  relations  of  the  State,  the  will  of  the  subject  is  bound  up  in 
that  of  his  Government." ' 

y^^fi  confidently  submit  that,  in  refusing  to  amend  the  Fcu'eign  Enlist- 
inen'  Act  in  aid  of  the  fulHlluuMit  of  the  duty  prescribed  by  the  Three 
Rules  of  the  Treaty,  Great  Britain  failed  "  to  use  due  diligence  to  pre- 
vent" the  injuries  for  which  the  United  States  demand  redress  from  the 
justice  of  this  Tribunal. 

VI.  We  pass  now  to  an  (examination  of  the  question  of  "  the  use  of 
due  diligence  to  prevent"  the  violation  of  its  international 
duty  to  the  United  States,  as  exhibited  in  the  course  pur- 
sued toward  the  offending  vessels  by  (rreat  Uritain,  after 
tbeir  first  escape  from  British  ports,  under  the  circumstances  and  con- 
sequences of  inculpation  for  such  escape  which  have  already  been  con- 
sidered. Except  for  the  actual  violence  and  depredations  committed  by 
llie  escaped  cruisers  after  their  emission  from  British  ports,  the  injuries 
to  the  maritime  property  of  the  United  States  and  the  enormous  con- 
nected losses  to  the  national  wealth  would  not  have  been  inflicted.  In 
every  view,  therefore,  the  subse(pient  career  of  the  cruisers  becomes  of 
the  highest  imi)ortance  to  the  practical  determination  by  this  tribunal 
of  the  matters  in  Judgment  before  it. 

1.  It  is  indisputable,  that  if,  in  res|)e(!t  to  any  one  of  the  vessels  in- 
criminated, the  escape  of  that  vessel  from  the  home  port 
should  have  been  shown  by  (Jreat  Britain,  to  the  satisfaction 
of  the  Tribunal,  to  have  takeu  place  in  spite  of  "  the  use  of 
due  diligence  to  prevent"  it,  the  principlesof  the  Three  Kules 
and  of  international  law  not  inconsistent  therewith  will  re(piire  that  the 
same  inquisition  must  be  applied  to  any  subsequent  escape  from  another 
port  of  the  British  Empire,  home  or  colonial,  where  the  Government  had 
ail  opportunity  to  lay  hands  upon  and  arrest  her. 

Thus,  suppose,  for  a  moment,  that  the  British  (Jovernment  was  not  in 
fault  in  respect  of  the  first  emission  of  the  Florida  from  the  port  of 
Liverpool,  her  subsequent  history  at  Nassau  must  then  be  examined. 
If  her  openly  allowed  departure  from  Nassau,  "on  an  expedition  of  pil- 
lage, piracy,  and  destruction,"  (to  (juote  Governor  Bayley  again,)  was 
not  hi  spite  of  the  use  of  due  diligence  "  to  prevent  the  departure  from 
itsjurisdiction"of  a  vessel  which  had  "been  specially  adapted  in  whole 
or  in  part  within  such  Jurisdiction  to  warlike  use,"  such  departure  is^ 
in  itself,  a  failure  by  Great  Britain  to  fulfill  the  duties  set  forth  in  the 
Three  Kules  of  the  Treaty,  and  must  be  so  pronounced  by  the  Tribunal. 
As  the  Florida,  until  after  she  left  Nassau,  remained  in  the  same  plight 
of  a  British  vessel  as  when  she  letl  Liverpool,  and  did  not  receive  a  (so- 
called)  "  commission,"  or  change  her  flag  until  afterward,  there  is  no 
opportunity  for  cavil  upon  this  point. 

li.  If,  on  the  other  hand,  the  original  escape  of  any  of  the  offending 
vessels  from  the  home  port  shall  inculpate  Great  Britain  under  the  Kules 
of  the  Tretity,  it  is  obvious  that  the  original  fault  and  accountability  of 
Great  Britain  in  the  supposed  case  only  enhance  the  obligation  which, 
we  have  seen,  requires  "the  use  of  due  diligence  to  prevent"  the  subse- 
fjuent  departure  from  its  Jurisdiction  of  a  vessel  whose  original  escape 
fi'oin  the  home  port  has  not  been  imputed  to  a  default  in  such  diligence. 


In     not     dotiiiiMiiu 

ci|]i-ndtn»r  r  r  u  i  m  t;  r  ^ 
wh^u  iiKuiii  III  Hi'it- 
i-*h  ports,  a  want  ul 
due  diliRcnct*. 


;■■    ■■"  ■■'■ .;  i- 


*        -c 


.K*f 


Phill.  Int.  I  aw,  (ed.  1871,)  p.  28,  preface. 


17() 


ARGl'MKXT    OF    TJIK    I'MI'KI)    >S'fATE8. 


Till-  iiMimition  lint 

tlttfriMitiftl    l.v  rum- 
nii^.tioiiiiig  a  iTHMi-r. 


3.  Tills  obligiition,  whcthor  in  tlio  alte  'native  of  the  oiifjinal  oscaiM' 
of  the  ollen«lin<''  vessel  being  for  want  of,  or  in  spite  of,  the  "nsc  of  due 
diligence  to  prevent"  it,  must  endure  until  it  has  been  fiUly  and  sue- 
eessfully  met  by  the  arrest  and  detention  of  the  ottending  vessel,  and 
her  "expedition  of  pillage,  i)iracy,  and  destruction"  brought  to  a  close. 

We  have  already  considered  wliether  this  indisputable  general  projx) 
sition  needs  to  be  qnalilied  by  the  impediment  insisted 
upon  to  its  continued  ai>[)lication,  arising  from  the  (so 
called)  "commission"  as  a  i)ublic  ship  of  a  belU'jerent  not 
recognized  as  a  nation  or  a  sorcrcif/n.'  AN'e  have  shown  that,  in  regard 
to  public  sliips  of  recognized  nations  and  sovereigns,  this  public  char- 
acter by  comity  withdraws  them  only  from  the  JuriBdictiou  of  courts  and 
process,  and  leaves  them  amenable  to  the  political  and  execu+ive  power. 
We  ha>e  shown  that,  in  the  case  of  public  ships  having  no  recognized 
state  or  sovereign  behind  them,  the  political  and  executive  power  dials 
with  them,  in  its  own  discretion,  with  strong  hand,  in  administration  ut 
every  dut.y  and  ever3'  right  ])ertaining  to  itwself  or  owed  to  another  nu 
tion.  The  grounds  upon  Avhich  we  put  our  inculpation  of  Great  Britain 
for  dealing  with  these  Hebel  cruisers,  as  it  did,  after  their  commission  as 
public  ships,  do  not  involve  any  contention  as  to  whether  or  uot  Judicial 
control  should  thereafter  have  been  asserted  over  them.  This  domestic 
question  of  comity  to  the  Rebel  cruisers  on  their  "  expeditions  of  i)illa<>e. 
pirac.v,  and  destruction,"  may  be  at  the  discretion  of  a  (lovernment. 
But  the  pretensions  that  the  international  duty  by  which  Great  Britain 
was  "bound"  to  the  United  States  to  use  due  diligence  to  prevent  these 
oft'ending  vessels  of  guilty  origin  from  departing  from  its  ])orts  when  it 
Avas  master  of  the  opportunit.v  so  to  do,  was  cut  short  and  overmastered 
by  the  Itebel  "  commission,"  ui)on  the  reasons  already  given,  we  entirely 
deny. 

4.  It  is  conspicuous  ui)on  the  ])roofs  before  the  Tribunal  that  it  was 
quite  in  the  ])ower  of  Her  ^lajesty's  Government,  by  arrest 
ing  these  ottending  vessels  at  their  first,  or  even  later,  visits 
to  British  liOvtH  after  their  successful  fraud  upon  the  neutral 
obligations  of  Great  Britain  in  their  original  "  escape,"  to 

have  intercepted  these  "expeditions of  pillage,  piracy',  and  destruction," 
and  at  oncje  repaired  the  misfortune  or  the  failure  of  tiuty  which  had 
made  such  "escape"  possible,  and  struck  a  fatal  blow  at  the  systeniatie 
l)rojectand  preparation  of  such  expeditions  from  the  home  ])orts  of  Great 
Britain.  There  was  no  adequate  motive  for,  or  benefit  from,  these  guilty 
enterprises  if  the  tirst  escape  were  to  leave  the  vessels  homeless  and 
shelterless  upon  the  ocean,  with  no  asylum  in  British  ports  except  such 
as  mere  humanit.y  otters  against  stress  of  storm  and  danger  of  ship 
wreck.  Such  asylum,  upon  the  very  motive  on  which  it  is  yielded,  upon 
the  very  plea  upon  which  it  is  begged,  the  sentiment  of  humanity,  would 
have  exacted  the  abandonment  of  the  career  of  violence,  meditated  or 
commenced,  and  a  submission  to  the  outraged  authority  of  Great  Britain. 
whose  peace  and  dignity  were  compromised  by  the  original  escape  from 
its  ports. 

It  is  a  notable  fact  that  not  oiu^  of  these  ottending  vessels  ever  re 
turned  to  a  home  port  of  Great  JJritain,  except  the  Georgia,  to  be  dis 
mantled  and  sold,  and  the  Shenandoah  to  be  surrendered  to  the  Govern 
ment  of  the  United  States.  The  Florida  once,  and  the  Alabama  once, 
sought  the  commercial  recruitment  which  the  hosj»italit.y  of  the  ports  of 
France  conceded  them,  on  the  plea  of  reldche  foreee.  They  had  not  vio 
lated  the  neutrality  of  France  in  their  original  outttt,  and  liad  no  resent 

'  Sii2>ra.  pp. 


N  c.  t,  !■  X  ■■  lihlii 
f  si-apt'd  r  (  n  j  s  i!  i 
Iniiil  Itnlish  )i..i-: 
\v;is  n  want  i)i'  ili 
(liii«t'ni'.'. 


FAILURE    OF    GREAT    BRITAIN    TO    IILFIL    ITS    DUTIES. 


177 


"  to 


vcr  I'l'- 
be  (li^* 
Joverii 
a  once. 
)orts  of 
lot  vio- 
resent- 


ments or  restniints  to  fear  in  her  ports.  lUit  why  prefer  France  to 
England  ?  Was  it  on  motives  of  market  and  convenience  ?  The  snp- 
plies  for  these  crnisers  while  in  the  French  ports  were  sent  to  thein  from 
England.  Every  interest,  every  inclination,  every  motive  wonld  have 
carried  them  to  England,  had  not  some  overwhelming?  reason  deterred 
them  from  that  resort.  They  had  vicdated  her  neutrality ;  they  had 
l)rought  scandal  and  reproach  npon  the  administration  of  her  laws. 
Tiiey  were  not  lacking  in  courage  or  elfrontery;  but  that  the  govern- 
ment of  (Ireat  Britain  would  tolerate  iheir  presence  in  her  ports  to  re- 
plenish their  resources,  and  "  their  expeditions  of  pillage,  ])iracy,  and 
]»lundcr,"  was  impossible  to  be  conceived,  and  thej'  avoided  the  danger, 
jjut  the  wide  jmwer  of  that  nation  "  whose  morning  drum-beat,  com- 
mencing with  the  sun  and  keeping  company  with  the  revolving  hours, 
snrroniuls  the  whole  earth  with  one  contiinious  strain  of  the  martial  airs 
of  England,"  does  not  outrun  the  obligations  of  i)ublic  justice  or  of  in- 
ternational duty.  What  it  would  shock  the  moral  sense  of  Englishmen 
to  deny  must  have  been  the  action  of  I  ler  INLajesty's  ( irovernment  at  home, 
should  have  been,  but  was  not,  their  action  throughout  their  colonial 
possessions. 

On  the  L'Oth  day  of  A])ril,  18(54,  in  the  debate  in  the  House  of  Lords 
on  the  dispatch  of  the  Duke  of  Newcastle  to  (Governor  Wodehouse,  in- 
structing him  that  he  should  have  detained  the  Tuscaloosa,  Earl  liussell, 
defending  this  instruction,  said  in  part  as  follows  : 

It  mn.st  lie  recollectoil  that  all  these  aiii>lleatinn.s  of  priii(Mj>les  of  international  law 
totJK!  contest  between  the  Federal  and  so-.styled  Confederate  States,  have  to  be  inado 
under  very  exceptional  circunistances.  It  lias  been  usual  for  a  I'ower  carrvin<)j  on  war 
npon  the  seas  to  possess  ports  of  its  own  in  whicli  vessels  are  built,  eiinijtjjed,  and  titted, 
and  from  which  they  issue,  to  which  they  bring  their  prizes,  and  in  which  those  prizes, 
wlica  brought  before  a  court,  are  either  condemned  or  restored.  Ihit  it  so  happens 
that  in  this  eonlliet  the  Confederate  States  have  no  ports,  except  those  of  the  Mersey 
and  the  Clyde,  from  which  they  lit  out  ships  to  cruise  against  the  Federals. ' 

In  the  same  debate,  the  Attorney  General,  Sir  IJoundcll  Palmer,  also 
defending  the  dispatch,  in  addition  to  the  words  we  have  quoted  supra, 

said : 

By  the  mere  fact  of  coming  into  neutral  territory,  in  si)ite  of  the  prohibition,  a  for- 
eign Tower  places  itself  in  the  positi(m  of  an  outlaw  against  the  rights  of  nations, 
and  it  is  a  mere  <iuestion  of  practical  discrcition,  judgment,  and  moderation,  what  is 
the-  proper  way  of  vindicating  the  offended  dignity  of  the  neutral  sovereigu.- 

In  February,  1804,  Mr.  Vernon  Ilarcourt  thus  wrote  in  a  letter  to  the 
London  Times : 

I  think  that  to  deny  to  the  Florida  and  to  the  Alabama  access  to  our  ports  wonld  be 
the  legitimate  and  dignified  manner  of  expressing  our  ilisaiiproval  of  the  fraud  which 
lias  been  iiracticed  npon  our  neutrality.  If  wo  abstain  from  taking  such  a  course,  I 
tear  we  may  justly  lie  under  the  imputation  of  having  done  h'ss  to  vindicate  our 
S<iod  faith  than  the  American  Government  consented  at  our  instance,  upon  former 
occasions,  to  do.-' 

On  the  13th  of  May,  18G4,  in  a  debate  relative  to  the  course  that 
should  be  adopted  in  regard  to  the  Georgia  which  had  come  into*Liv- 
erpool,  the  Attorney  General  said : 

I  Lave  not  the  least  doubt  that  we  have  a  rifjht,  if  we  thought  fit,  to  exclude  from 
our  own  ports  any  particular  ship  or  class  of  ships,  if  we  consider  that  they  have  vio- 
latt'd  our  neutrality .■• 

In  18G7,  Her  Majesty's  Commissioners  having  been  empowered  to 
eport  what  changes  ought  to  be  made  in  the  Foreign  Enlistment  Act  for 


'  Am.  App.,  vol.  v,  p.  535. 
»Ibid.,  vol.  iv,  p.  a04. 


12  c 


-  Ibid.,  p.  570. 

*  Ibid.,  vol.  V,  p.  583. 


178 


ARGl'MKNT    OF    TllK    rNITKD    STATKS. 


tlu'.  inupose  of  ftiviiis'  it  incvoased  oflicioimj'  and  briiisins"  ^^  '"to  lull 
cont'oniiity  with  intornatioiial  obligiitioiis,  all  joiiuMl  in  this  n>[)ort  : 

Til  liino  of  war  no  vcsm'I  cniiilnynl  in  u  military  or  navnl  .service  of  iniy  l)clli;;iii  w, 
vliicli  .sliall  liiivi"  lii'cn  huiU,  ('(inipiM'd,  littcil  ont,  arnn'd,  or  (lis](atcli('il  contrary  to  the 
enactment,  slionhl  be  admitted  into  any  imrt  of  Her  Majesty's  dominions.' 

That  tlicso  are  not  oxtrome  or  di.spntod  i)ro|)0.sitioi).s,  i.s  evident  I'lom 
the  t'onenrrcnce  therein  of  Lord  Cairns,  Daron  Ilramwell,  Sir  Jiomidt'll 
Palmer,  and  ^Ir.  Gregory,  as  well  its  Dr.  J'hilliniore,  3Ir.  Vernon  llai- 
conrt,  Mr.  Thomas  Daring,  and  yiv.  Forstor. 

On  the  1th  of  Angnst,  1S70,  in  the  House  of  t'ominons,  the  atioriicv 
general,  Sir  li.  1'.  Collier,  having  reference  to  tiie  omission,  from  the 
Foreign  Eidistment  Act,  of  a  clanse  carrying  out  the  report  above  cited. 
said  : 

Ifo  liad  tocxjilain  that,  altliouiuli  tins  Uoyal  Commissiom-rs  nnnle  a  reconimendatiui 
to  the  etl'ect  of  this  clanse,  they  <lid  not  intend  that  it  should  be  embodittd  in  an  art  (ii 
Parlianwnt,  but  that  it-  should  be  carried  out  under  tlui  (Queen's  rej^ulations.  TluMiov- 
ernor  of  a  Colony  would,  under  thi.s  clause,  havo  to  determine  whether  a  ship  entering 
liis  port  wa.s  ille;j;ally  titted  out  or  not,  and  thi.s  was  enough  to  show  the  object  the 
commissioneis  had  in  vitsw  conUl  not  be  carried  out  by  an  Act  of  I'arliamcsnt.  It  wa.s 
intended_^instead  to  advise  Colonial  Governors  of  the  escape  of  any  illegally  tittuil 
vessels. - 

Thus  it  appears  that  Ilor  ^Majesty's  (lovcrnment  fully  recognizes  tbo 
power  of  the  lioyal  Prerogative  to  exclude  from  British  i)orts  any  ve.s.?el 
or  class  of  vessels  which  has  violated  its  neutrality.  Brazil,  when  the 
occasion  for  the  exercise  of  this  right  was  presented,  considered  it  equally 
a  duty,  and  issued  and  executed  her  order,  for  the  exclusion  of  the  Ala 
batna  and  Shenandoah  from  any  port  of  the  Empire. ' 

Pi'obabl^',  the  suppression  of  the  maritime  hostilities,  from  which  tlu- 
United  States  have  suffered,  would  have  followed  from  the  milder  niea.v 
lire  of  i>roscription  from  British  ports,  enforced  by  arrest  and  detou 
tion,  if  the  prohibition  was  transgres.sed.  The  lead  thus  taken  by  Croat 
Brittun  would  naturally,  if  not  necessarily,  have  been  followed  by  tlio 
other  powers  whose  possessions  afforded  a  casual  and  infrequent  resort 
for  the  offending  vessels.  Following,  at  greater  or  less  interval,  as  they 
had,  the  recognition  of  belligerency  declared  by  Creat  Britain,  the.se 
powers  would  have  admitted  the  common  duty  of  neutrals,  in  the  pecii 
liar  situation  of  maritime  hostilities  presented,  to  accept  the  demiueia- 
tion  by  Great  Britain  of  the  escaped  vessels  as  outlaws  and  not  bellig 
erents,  and  denied  them  further  hospitality. 
5.  Certainly,  in  the  absence  of  such  proscription,  it  woidd  seem  ne- 
cessary that  some  representations  should  havo  been  made 
by  ller  ]\[ajesty's  Government  to  the  persons  with  whom  it 
was  in  the  habit  of  communicating  as,  in  some  sort,  accred 
ited  by  the  Eebel  organization  for  such  purpose,  concern 
ing  the  flagrant  violations  of  neutrality  in  which  Great  Brit 
ian  was  involved,  by  the  system  of  operations  of  the  Rebel  agents  here 
tofore  brought  to  the  notice  of  the  Tribunal.* 

The  Arbitrators  will  search  the  British  Case  and  Counter  Case,  ami 
the  body  of  their  appended  proofs,  in  vain,  for  the  least  intimation  of 
such  representations.  But  we  are  not  left  to  inference  based  upon 
this  state  of  the  evidence.  In  the  American  Appendix  will  be  fouud 
certain  correspondence  between  Earl  Eussell  and  Mr,  Mason,  (then  per 
manently  resident  in  London,)  which  exhibits  an  entire  unconcern  in 


Tbe  reprpspnta- 
tion.H  to  in^urufnt 
HBtMits  respcr  t.  i  ii  d 
thenc  crui^tTs  wcrt* 
BO  long  dpiayprf  and 
8  o  treble  an  to 
amouT'.t  In  want  nj 
due  diligence. 


'  Aui.  App.,  vol.  iv,  p.  b2. 
^  Supra^  p.  17,  sec.  viii. 


"^  See  Appendix  to  this  Argumeut,  Note  B. 
■*  Am.  App.,  vol.  vii,  p.  113. 


FAILIKH    OF    (iKKAT    HRITAIN    TO    ITIJTL    ITS    DL'TIl^S.       179 


tlic  niiiid  of  lid"  ^Mnjcst.v's  I'oivij^n  Sccii'tiuy  at  tlio  tiiiie  the  oscnpo  of 
till'  Alaltiima  was  a  fresh  incident  at  lioine,  and  tlie  dealing;'  with  the 
escajted  Kioriihi  by  the  colonial  authorities  at  Nassau  was  under  the 
notice  of  tlu^  1  Ionic  Adminis  ration.  Durin;;  the  very  period  of  these  two 
matters  of  the  Flori^la  and  the  .Vlabaina,  which  Karl  IJussell  subse- 
quently sti;4inatizcd  in  Parliament  as  •»  a  scandal  and  a  re|)roach"to 
En^iland,  a  corresponth'nce  between  the  Foreign  Secretary  aiul  ]\Ir.  IMasou 
was  in  progress,  in  which  the  most  I'riendly  tone  ami  toi>ics  ])revailed. 
This  correspondence  l)e<'ins  with  .Inly  17,  and  terminated  with  a  letter 
of  I'arl  I'ussell,  August  L',  180L*.  This,  it  will  bo  noticed,  runs  through 
the  time  of  the  deliberations  of  the  IJritish  (lovernnuMit  as  to  the  arrest 
of  the  Alabama,  and  beyond  the  ct)nsuinmation  of  her  succcs.ful  evasion 
from  Liverpool.  But  not  a  word  on  the  subject  is  found  in  the  corre- 
sspondence.' 

Again,  at  the  end  of  the  year  ISOl,  another  correspondence  between 
the  same  writers  took  ])laee,  and  that  nothing  of  expostulation  or  resent 
iiient,  or  exaction  of  redress  for  these  continuing  outrages,  finds  place  in 
it,  jnay  be  well  iid'erred  from  the  manner  in  wliich  3Ir.  Slidell  feels  justi- 
fied in  commenting  to  ]Mr.  IJenjamin,  of  the  Confederate  Cabinet,  upon 
Earl  liusseirs  concluding  letter  : 

]Iis  Lorilsliip  voliiiitaiity  \vciit  f»ut  of  Iiis  way  to  say  tlic  iikinI:  (lisatjrpcalilo  tiling, 
possilde  to  tlie  Northern  liovcrnnnMit ;  liis  reffriMice  to  tins  Truaty  ol'  17^:5  will,  I  tliink, 
1m'  especially  distasteful  to  tliein,  i)lae<ul  in  connection  with  his  twicc-ropeatcd  recog- 
nition of  the  separate  existcMice  of  the  North  ami  South,  as  never  nier<>e(l  in  n  sinj^lo 
nationality.  I  should  \w  much  surprised  if  this  letter  does  not  call  forth  a  universal 
liowl  against  his  J^ordship  from  the  Northt.'rn  press. - 

That  Her  Majesty's  (lovernment  could  promptly,  and  without  en- 
feebling courtesy,  discharge  this  duty  of  remonstrance  to  a  belligerent 
against  supposed  or  intended  violations  of  its  neutral  obligations,  is 
demonstrated  by  the  correspondence  of  Earl  lluss;  H  with  3[r.  Adams  in 
regJird  to  some  matters  which  seemed  to  Her  Majesty's  Government  to 
ro(iuire  explanations  from  the  United  States. 

On  the  30tli  of  November,  1803,  Earl  Kussell  thus  wrote  to  Mr.  Adams 
ill  part  as  follows : 

I  have  the  honor  to  call  your  attention  to  the  following  statements,  which  have  coma 
to  the  knowledge  of  Her  M.ajesty's  Government,  respecting  the  shipment  of  British 
subjects  on  board  the  United  States  ship  of  war  Kearsarge,  when  in  the  port  of  Queens- 
town,  for  service  in  the  Navy  of  tlu!  I'nited  States. 

I  need  not  i>oint  out  to  you  the  importance  of  these  statements,  as  proving  a  delil)- 
eriite  violation  of  the  laws  of  this  country,  within  one  of  its  harbors,  by  commissioned 
otticers  of  the  Navy  ot  the  United  States. 

Before  I  say  more,  I  wait  to  learn  what  you  can  .lUege  in  extenuation  of  such  culpa- 
lilo  conduct  on  the  part  of  the  United  States  otticers  of  the  Navy,  and  the  United 
States  Consul  at  Queenstowu.' 

On  the  31st  of  l\raicb,  18G1,  Earl  llussell  wrote  to  Mr.  Adams  as  fol- 
lows : 

I  have  the  honor  to  bring  to  your  notice  an  account,  taken  from  a  newspaper,  of  what 
passed  at  the  trial  before  Mr.  Justice  Keogh  of  the  British  subjects  indicted  for  Iiaving 
taken  service  in  the  United  States  ship  Kearsarge,  at  Queenstowu,  in  violation  of  the 
lirovisions  of  the  Foreign  Enlistment  Act;  and,  with  reference  to  the  correspondence 
which  has  passed  between  us,  I  have  the  honor  to  request  that  you  will  inform  nie 
whether  you  have  any  explanations  to  ofter  on  the  subject.* 

Ou  the  9th  of  April,  1864,  Earl  Russell,  writing  to  Mr.  Adams, 

said : 
I  transmit   to  you  herewith  extracts  from  a  deposition  of  one  Daniel  O'Connell,  by 


I 


1   ' 


11 


'  Am.  App.,  vol.  1,  pp.  416-426. 
3  Ibid.,  vol.  ii,  p.  421. 


J  Am.  App.,  vol.  i,  p.  619. 
*  Ibid.,  p.  442. 


180 


AKGIMEXT    OF    THK    rNlTED    STATES. 


■\vliich  yon  will  pcircivc  tliat  lie  was  cxaip'iifd  ami  kwchii  Uffun'.  or  witli  tin'  kiiowl- 
»'(ln(!  of,  olllicfis  (if  the  L'iiiti'<l  States  sliip  ot  war  Ktaisarj^t',  and  tninislusil  with  the  imi- 
foiin  of  a  I'nitfd  States  sailor. 

I  know  not  liow  tliescciicninstanees,  occnrriiifj  on  boarda  Hliip  of  war.  can  have  taken 
jdnt'o  Avithont  tho  knowledge  of  the  cai»taiii  of  tht)  vessel.' 

So,  too,  Ilor  ]\[iiie.st.v's(iov('riuiieiit  i\k\  (iiid  occii  ion  and  opportunity 
to  iuldres.s  its  lir.st  renionstnincc  on  the  subject  of  these  viohitions  ot 
neutrality  to  the  per.sons  with  Avlioui  it  was  in  the  habit  of  treatiu};'  as 
representativesof  tlieltebt'lor^'ani/ation.  Tliiswas  February  l.'{,18(M,Jiist 
two  njontlis  before  the  linal  overtlirowof  the  Rebellion  and  the  surrender 
of  lliclnnond.  We  ajipend  the  openinj;  and  concluding?  parajjraphs  <»t 
this  remonstrance.  They  (orni  i)art  of  the  letter  from  which  imp<trtant 
citations  have  been  made  in  tiiis  argument,  and  a  considerable  extract 
from  which  is  placed  at  the  head  of  ]>art  v,  of  the  case  of  the  United 
States.  IJy  that  extract  it  appears  that  "  the  unwarrantable  practice  of 
bnildiny:  ships  in  this  country  to  be  used  as  ves.sels  of  war  a{.jainst  a 
state  with  which  Her  Miijesty  is  at  peace"  wa.s  still  conUiiued,  and 
formed  a  main  subject  of  tiie  remonstrance.  "We  ([uote  from  Earl  lins- 
sell's  letter : 

It  is  now  my  dnty  to  leiinest  son  to  lirinj;  to  the  noliee  of  the  authorities  nnder  \\  honi 
yon  a»!t,  with  a  view  to  their  serious  eonsideiation  tiiereof,  th(^  jnst  eomjdaints  wliiili 
Her  Majesty's  (ioveiiinient  have  to  make  of  the  e.oiidnct  of  the  so-called  (,'onfed(  rate 
Oovernment.  The  facts  upon  which  these  eoinphiints  are  founded  tend  to  show  tliiit 
iler  Majesty's  neutrality  is  not  resjiei'ted  hy  the  agents  of  that  (Jovcrnnient,  and  that 
undue  and  reprehensible  iittemjits  have  been  made  by  tliem  to  involve  Ht^'  Majesty  in 
a  w.ir  in  which  Her  Majesty  had  declared  her  intention  not  to  take  part. 

'k'on  may,  ;;entlemen,  have  tjit;  means  of  contesting  tlie  accuracy  of  tho  inforniiitioii 
on  which  my  forejioin;;  statements  have  been  founded  ;  and  I  shonUl  bo  j^hid  to  tind 
that  Her  Majesty's  (iovernmeiit  liaM-  iieen  misinformed,  althouj^h  I  have  no  reason  to 
think  thiit  such  has  lieen  the  ccse.  H",  on  tiie  contrary,  the  information  which  Her 
Majesty's  (Jovernment  have  receive*!  with  re;;ard  to  these  matters  cannot  bo  gainsaid, 
I  trust  that  yon  will  feel  yoniselvs  authorized  topromise,  on  behalf  of  tho  Confederate 
Governnu'iit,  that  jiractii.'es  so  otl'ensive  and  nn warrantable  shall  cease,  and  slni'll  be 
entirely  abandoned  for  th  •  future.  I  .shall,  therefore,  await  anxiously  your  reply,  aftoi 
referring  to  the  authoriti's  of  the  Confederate  States.- 

AYe  find,  too,  tlrt  in  ^larch,  180."»,  liardly  thirty  days  before  the  sur- 
render of  llichniond,  the  Colonial  CJovernor  at  Nassau  advised  the  home 
Clovernment  of  the  means  that  had,  at  la.st,  been  found  to  make  the  eva- 
sion of  another  Florida  impossible.  The  (Jovernor  writes  to  Mr.  Card- 
mq\],  a  member  of  the  ^Ministry,  as  follows  : 

I  take  this  opportunity  of  mentioning  that  for  some  weeks  past  I  have  bad  a  report 
made  to  me  of  every  steam-vessel  arriving  in  the  harbor,  witli  sjiecial  notice  of  any- 
thing in  the  ecm.struetion  or  eiiuijunent  of  any  Avhich  ditfer  from  the  ordin.ary  blockaile- 
runners,  and  the  otlicers  of  customs  are  on  the  alert  to  detect  and  report  any  attempts 
to  violate  the  provisions  of  the  Foreign  Enlistnu^nt  Act.' 

It  is  unnecessary  to  point  to  the  conclusion  which  the  Arbitrators 
must  have  anticipated,  that  the.se  ])owers  of  remonstrance  and  these  re- 
sources of  vigilance,  if  resorted  to  in  February  and  March,  18G2,  woultl 
Lave  foreclosed  the  controversy  now  in  judgment  before  the  Tribunal. 

It  is  easy  to  see  how  these  manifold  failures  of  Great  Britain  to  fulfill 
its  international  duty  to  the  United  States  led  to  the  enormous  injuries, 
as  their  necessary  consequences,  which  have  constituted  the  sum  of  the 
grievance  which,  at  the  close  of  the  Eebellion,  the  United  States  had 
suffered  from  this  friendly  power. 

By  confining  attention  and  efforts  to  questions  of  legal  conviction  for 
municipal  offenses,  and  becoming  helpless  in  the  meshes  of  law-ers  and 
courts,  Her  jVIajesty's  Government  saw  the  Florida  and  Alabama  emitted 


'  Aui.  App.,  vol.  ii,  p.  448, 
sBrit.  App.,  vol.  ii,  p.  589. 


-  Am.  App.,  vol.  i,  pp.  630,  631. 


FAILrrRE   OF    GREAT    URITAIX   TO    PUr.FII.    ITS    DrTTES. 


181 


report 
iiiiy- 
[•kaile- 
tciiiiits; 

iitors 
so  re- 
.oiilcl 
uial. 
fulfill 
iirios, 
)f  the 
s  bad 


I  )i''  Unt  i-«li  f*oiir->t» 
in  tliiMf  r.'-tiMM  t.  .H 
vitluiiUry. 


IVoiii  IJritisli  ports,  while  they  wore  "  wiitchcd "  by  (lovtMnnuint  oIlllcerH 
and  «lobated  about  by  oininoiit  lawyors,  and  inadf  them  but  tbrciuuiiers 
ot'liUo  oftondor.s.  The  doinosfic  law  ]»r(»to(!ted  their  vvdsloii  aud  para- 
lyzed Llie  f^oviivwmouVA  prcroition,  and  the  international  obligation  had 
no  place  or  authority  at  that  staye  of  the  transaeLion.  lUit  the  nu)nient 
tlicy  were  out  they  were  protected  in  their  "expeditions  of  pillage,  pi- 
racy, anddestru(;tion"  by  thelawof  nations,  which,  it  was  said,  compelled 
(Jrcat  lUitain  to  hold  her  hands,  by  reason  of  the  respect  which  inter- 
uational  comity  ins[>ires  for  the  '•  commission  "  of  even  such  cruisers. 

Ir  was  true  that  this  (lebility  of  municipal  law,  and  this  homage  to 
comity,  were  wholly  voluntary  on  the  i)art  of  (Ircat  IJritain. 
Tlieone  was  curable  by  Parliament,  and  the  other  lay  at  the 
(liscretion  of  the  Crown.  iJut  Jler  ^lajesty's  (Jovernment, 
while  the  events  were  in  progress,  did  not  lind  aderiuate  reiisons  for  any 
action,  notwithstanding  the  wide  siuead  depredations  which  these  olfend- 
ing  vessels  were  committing. 

There  was  one  measure  of  restriction  upon  these  depredations  which 
ITcr  Majesty's (rovernment  adojtted  ami  )>erse\ered  in,  we  Kxii,.,,r,„  or 
mean  the  exclusion  of  prizes  of  either  belligerent  from  l>rit-  f;:,',M\,o'b",,,'lu''u 
ish  ports.  This  ordinance  was  consonant  with  sound  |)rin-  "'"«'>''*"'«"'• 
ci[)les,  ami  adopted  and  enlbrced  in  sincere  good  "aith.  IJut  to  this 
measure  we  can  trace  no  real  benelit  in  actually  .r;'vessing  the  maritime 
hostilities.  On  the  contrary,  its  most  atllietive  tea)  ure,  the  destruction 
of  ships  and  their  cargoes  at  sea,  flowed  from  the  circumstance  that  the 
rebels  had  no  ports  of  their  own  which  the  upval  i)ower  of  the  United 
States  had  not  closed,  and  that  their  prizes  -  re  excluded  from  neutral 
ports.  This  was  well  ])ointed  out  by  Earl  llussell  in  parliaiuent,  in  a 
passagi  !,ir  'ady  referred  to. 

It  was  for  this  reason  that  the  well-meant  exclusion  of  prizes  from 
ii^.itral  i)orts  gave  to  the  rebel  cruisers  enlarged  capacity  for  terror  and 
for  mischief,  and  shocked  the  civilized  world  with  this  spectacle  of 
destructive  violence.  But  the  ai)peal  that  this  consequence  was  a 
demonstration  that  maritime  belligerency  should  never  have  been 
granted,  and  that  the  true  remedy  was  to  withdraw  the  concession,  was 
uot  successful. 

Under  these  two  measures  of  homage  to  the  rebel  '•commission,'' 
though  it  covered  a  Florida  or  an  Alabama,  and  of  acquiescence  in  the 
destruction  of  enemy's  maritime  property  without  adjudication,  Anier- 
can  commerce  was  ground  to  powder,  as  between  the  upper  and  the 
nether  millstone. 

Meanwhile  no  retaliation  of  prize  capture  or  destruction  as  enemy's 
property  was  possible.  The  law  of  contraband  and  breach  of  bloclcode 
was  the  only  weapon  at  the  command  of  the  United  8tates  against  the 
fleet  of  blockade  runners  owned  and  navigated  by  the  Kebel  organiz- 
ation, but  protected  as  neutral  property  by  the  British  flag.  This 
retaliation  was,  necessarily,  submissive  to  the  prize  jurisdiction  and  to 
condemnation  only  upon  sf^cial  proofs.  It  was  thus  that  the  whole 
rebel  naval  warfare  was  prosecuted  by  cruisers  of  unlawful  British 
outfit,  protected  by  British  recognition  of  the  Eebel  tlag,  while  the 
whole  Eebel  commercial  marine  was  protected  by  the  cover  of  the  Brit- 
ish flag.  So,  too,  no  opportunity  to  shut  up,  or  to  capture,  or  to  destroy, 
auy  vessel  in  port,  was  open  to  the  Navy  of  the  Uniteti  States ;  every 
port  accessible  to  such  vessel  was  a  neutral  port,  which  the  United 
States  could  neither  blockade  nor  invade  with  Lheir  hostilities. 

AVe  have  exposed  these  peculiar  features  of  intolerable  hardship  to 


+ 


\Ai 


f^ 


ii:. 


TliH  rfs[iMi>-iiiiliiy 
of  <irfu\  ItntiiJti  lor 
I  hH!»f  liiiliirt"8  III  liu*' 
iliIiBfUif  continucil 
until  the  end  ol'  the 
(  a  r  f  e  r  o  I  the 
truiserp. 


fieiK  f   liiiliiiiitttd    ity 
(ireat  Britain. 


182  ARGUMENT  OF  THE  UNITED  STATES. 

the  United  States  in  these  maritime  hostilities,  for  the  bear- 
ing they  have  upon  the  failure  of  Great  Britain  to  fulfill  its 
obligations  under  the  Rules  of  the  Treaty  in  refusing  to 
arrest  the  offending  vessels  in  its  ports,  or  to  exclude  them 
therefrom,  after  their  original  outfit  and  escape.  We  cou- 
fidently  submit  that  the  Tribunal  will  find  in  this  ground  of  inculpation, 
(1)  a  substantive  failure  of  "  due  diligence,"  in  the  sense  of  the  Treaty, 
and  (2)  a  maintenance  of  continued  responsibility  for  "  all  claims  grow- 
ing out  of  the  acts  of"'  these  vessels  during  their  career  to  its  end. 

It  will  remain,  then,  for  the  Tribunal  to  consider  these  various  propo- 
sitions of  law  and  of  fact,  under  which  the  actual  conduct  of  Her 
Majesty's  Government  is  now  to  be  judged,  and  to  apply  them,  so  far  as 
they  shall  approve  themselves  to  the  enlightened  judgment  of  the  arbi- 
trators, to  the  exact  analysis  of  the  evidence  touching  each  offending 
vessel,  in  a  previous  division  of  this  argument  set  forth.  AVe  gladly 
recognize  the  great  advantages  which  the  contending  parties  will  derive 
from  the  practical  and  comprehensive  estimate  of  the  decisive  elements 
of  the  controversy,  which  the  experience  and  sagacity  that  belong  to 
conA'crsance  with  public  aflairs  enable  the.  arbitrators  to  bring  to  tlie 
determination  of  this  controversy. 
We  confidently  submit  that  the  British  Government  has  not  laid 
No  ,.vi,i.  n,c  ol  ihe  before  the  Tribunal  any  evidence  tending  to  show  the  exercise 
of  "due  diligence,"  in  respect  of  any  one  of  the  oftending 
vessels,  to  jyyevent  the  occurrence  of  the  violation  of  the  in- 
ternational obligation  imposed  by  the  Three  Rules  of  the  Treaty.  Indeed, 
we  may  safely  go  further  and  insist  that,  while  the  matters  were  injicri, 
Her  Majesty's  Government  did  not  at  any  time  apply  its  thoughts  or  its 
purposes  to  the  direct  prevention  of  such  violation.  It  was  wholly  en- 
gaged in  considering  what  prosecutions  for  penalties  and  forfeitures 
under  the  Foreign  Enlistment  Act  it  could  hopefully  institute.  For  the 
reasons  we  have  pointed  out,  this  does  not  tend  to  make  out  "  due  dil- 
igence" to  prevent  the  violation  of  the  internationaJ  obligation  assigned 
by  the  Treaty. 

A  phrase  in  the  first  clause  of  the  first  Rule  speaks  of  a  neutral  Gov- 
ernment's duty  being  applicable  to  '•  any  vessel  which  it  has  reasonable 
ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a 
power  with  which  it  is  at  peace."  What  attention  was  ever  paid  by 
Her  Majesty's  Government,  in  its  deliberations,  its  doubts,  and  its  de- 
cisions, about  arresting  a  vessel,  to  this  broad  criterion  ?  "NVe  look  in 
vain  for  the  agitation  of  any  such  question  in  either  of  its  elements,  (1) 
of  the  subject  of  belief,  or  (2)  the  grounds  recpiired  to  support  it.  In- 
stead, the  whole  topic  of  debate,  of  advice,  and  of  determination  before 
Her  M.njesty's  Government  was  (1)  of  belief  that  a  forfeiture  of  the  ves- 
sel could  be  obtained  under  the  Foreign  Enlistment  Act,  and  (2)  the  sup- 
port required  for  such  belief  was  to  be  siroru  voluntary  evidence  in  hand 
suflicient  to  exclude  appreciable  risk  of  failure  before  a  jury  and  conse- 
quent damages.  AVhenever  the  United  States  shall  have  submitted  by 
Treaty  to  this  test  of  the  international  obligations  of  Great  Britain,  it 
will  be  time  enough  to  adjudge  the  cause  by  it. 

We  respectfully  submit  that  there  is  nothing  in  the  evidence,  or 
argument  even,  Avhich  proves  or  asserts  that  the  British  Government 
was  either  without  reasonable  ground  to  believe,  or  did  not  believe,  that 
the  Florida  or  Alabama  at  Liverpool,  or  the  Florida  on  her  first  visit  to 
Nassau,  was  not  intended  to  cruise  against  the  United  States.  The 
only  deliberation  and  doubt  were,  as  to  the  prosecution  under  the  foreign- 
enlistment  act  ofHering  the  means  of  judicially  punishing,  and  so,  inci- 
dentally, interrupting,  the  jtrojected  enterprise. 


FAILUKE    OF    GREAT    BRITAIN    TO   FULFIL   ITS    DUTIES.       183 


So,  too,  we  coutidently  submit  to  the  Tribunal  that  it  does  uot  appear 
on  evidence  or  in  argument  before  the  arbitrators  that  Her  Majjesty's 
(lovernment  professes  or  claims  to  have  used  "  due  diligence"  within  tho 
])reuiises  of  the  Three  Ilules  of  the  Treaty,  unless  due  diligence  to  eu- 
lorce  forfeitures  aiul  pun'shments  under  the  Foreign  Enlistment  Act  is 
equivalent  to  due  diligence  to  prevent  the  violation  of  the  international 
obligation  to  the  United  States  wliich  is  exacted  by  the  Treaty.  We  have 
already  considered  this  subject  in  some  detail,  but  we  apprehend  that 
the  wide  distinction  between  these  two  propositions  is  too  i)lain  to  re- 
quire any  further  emphasis  than  its  statement.  All  the  laborious 
argument  and  voluminous  evidence  to  prove  due  diligence  in  prosecu- 
tions under  the  Foreign  Enlistment  Act  are  but  an  ^^  imhelle  tchim/^ 
against  our  challenge  of  due  diligence  as  exacted  by  the  treaty.  An  il- 
lustration of  the  ditiereuce  between  these  two  objects  and  measures  of 
due  diligence  is  presented  upon  the  occurrences  of  the  Florida's  first 
visit  to  Nassau.  Here  we  have  a  legal  trial  of  the  question  whether  the 
forfeiture  of  the  Florida  could  be  obtained  under  the  foreign-enlistment 
act  in  the  Vice  Admiralty  Court.  This  issue  was  held  to  exclude  all  evi- 
dence of  what  had  made  her  a  vessel  of  war  before  she  left  Liverpool,  and 
to  include  only  the  question  of  warlike  equipment  in  Nassau  as  cognizable 
by  the  local  court.  The  Vice  Admiralty  Court  held  that  the  evidence  did 
uot  prove  enough  within  this  issue  to  forfeit  the  vessel,  and  judgment 
was  given  against  the  Crown.  So  much  for  this  disposition  of  the 
question  of  private  right  involved  in  this  trial  in  Admiralty. 

But  Sir  Alexander  Milne,  and  Commander  Hiekley,  and  Commander 
McKillop,  and  other  naval  oflQcers,  concurred  in  thinking  that  their  duty, 
and  the  duty  of  Her  Majesty's  Government,  required  the  ijrci'ention,  by 
strong  hand,  of  the  departure  of  the  Florida.  Accordingly,  Comman- 
der Hiekley  seized  her,  and  Sir  Alexander  Milne  found  a  warrant  for 
such  action  in  "  the  very  grave  suspicion  of  being  intended  for  employ- 
ment as  a  Southern  cruiser ;  the  fact  of  the  vessel  being  fitted  in  every 
respect  like  one  of  Her  ^Majesty's  ships,  and  especially  adapted  for  war ; 
her  armament  ready  to  be  put  on  board,  with  a  crew  of  fifty  nuMi,  and 
otticers  of  the  Confederate  States  ready  to  command  her.'' ' 

This  action,  we  submit,  was  such  as  the  facts  of  the  case  required  to 
meet  the  due  diligence  of  the  Three  Kules  of  tho  Treaty.  IJut  the  main- 
tenance of  the  Foreign  Enlistment  Actwassurt'ercdto  measure  and  con- 
trol the  international  duty  of  the  Government,  and  the  only  question 
left  was,  whether  Commander  Hiekley  should  be  protected  fr"om  '•  blame 
and  consequent  respojisibility  "  for  his  seizure.- 

lu  the  light  of  the  proi)ositions  which  we  have  insisted  should  govern 
the  examination,  we  find  it  impossible  to  discover,  in  the  proofs  exhibit- 
ing the  conduct  of  the  liritisli  (rovoriiinent  in  respect  of  the  ott'ending 
ve(>sels,  any  evidence  .'ending  to  show  the  use  of  due  diligence  pointed 
at  the  fulfillment  of  fne  international  duty  exacted  by  the  Treaty.  In- 
deed, the  fact  that  the  Florida  and  Alabama  cscnpcd,  when,  as  Lord 
Granville  justly  observed  in  the  debate  on  the  Treaty  of  Washing- 
ton, "nothing  is  so  easy  as  to  prevent  a  vessel  of  the  Alabama  class 
escaping  from  our  shores,"  is  conclusive  evidence  in  the  absence  of 
countervailing  proof  tiiat  he  due  diligence  of  the  Treaty  was  no^  exhib- 
ited to  prevent  the  escape.  In  vain  shall  we  look  for  evidence  of  inev- 
itable accident,  of  imposition,  or  of  misfortune,  supervening  to  thwart  or 
surprise  Her  Majesty's  Government  and  accomplish  the  oftense,  notwith- 
standing the  emidoyment  of  due  diligence  to  prevent  it. 


!    v 


f 

■  h- 
t 


I.  '^h 


Brit.  App.,  vol.  i,  p.  liO. 


Ibid.,  p.  30. 


7^ 


mm 


184 


ARGUMENT  OF  THE  UNITED  STATES. 


■i.:,(A- 


It  lias  been  more  or  less  argued,  or  intimated,  that  in  tbe  escape  of 
the  Alabama  from  Liverpool,  some  element  of  accident  or  casus  mixed 
itself  with  the  transaction,  and  is  to  affect  the  judgment  of  the  Tribunal 
in  inculpating  or  exculpating  Great  Britain  for  her  escape. 

We  will  briefly  examine  this  question  of  supposed  accident  or  Cfl-s-v, 
The  Alabama  was  the  subject  of  attention  to  Her  Majesty's  Govern- 
ment, more  actively  and  immediately,  from  the  23d  day  of  June.  The 
Law  Officers  on  the  30th  of  that  month  state  that  it  seemed  "evident 
she  must  be  intended  for  some  warlike  purpose,"  and  refer  to  a  state- 
ment  of  Lairds'  foreman  that  the  vessel  was  "  intended  as  a  privateer 
for  the  service  of  the  Government  of  the  Southern  States,"  and  advise 
that  ste[>s  be  taken  by  Her  Majesty's  Government  "  to  ascertain  the 
truth."  On  the  same  day  the  surveyor  at  Li\erpool  reports  her  warlike 
build,  &c.,  and  states  the  current  report  that  she  is  built  for  a  foreijjii 
Government,  and  that  this  is  not  denied  by  the  Lairds,  with  whom  he 
has  comiuunicated  on  the  subject,  but  that  they  decline  to  answer 
questions  as  to  her  destination. 

On  the  9th  of  July,  the  Collector  was  informed  that  the  Lairds  had 
said  the  vessel  was  for  the  Spanish  Government,  but  that  the  Spanish 
Minister  gave  a  positive  assurance  that  this  was  not  true.  On  the  21.st 
of  July  the  Collector  sent  to  London  the  affidavits  in  the  case,  with  in- 
formation that  he  had  been  requested  to  seize  the  vessel,  and  asked  for 
instructions  by  telegraph  how  he  was  to  act,  "  as  the  ship  appeared  to 
be  ready  for  sea,  and  may  have  any  hour  she  pleases ^^ 

Upon  the  23d  of  July,  the  "  extreme  urgency"  of  the  case  was  repre- 
sented to  the  Government,  and  that  "  the  gun-boiit  now  lies  in  the  Birk 
enhead  docks  ready  for  sea  in  all  respects,  with  a  crew  of  fifty  men  on 
board."  On  the  20th,  the  decision  of  the  Government  was  urged,  partio- 
ularlj'  as  every  day  afforded  opportunities  for  the  vessel  in  question  to 
take  her  departure."  On  the  28th, ''  she  was  moved  from  the  dock  into 
the  river ;  the  men  had  their  clothes  on  board,  and  received  orders  to 
hold  themselves  ready  at  any  moment."  She  remained  in  the  river 
"until  11  or  12  o'clock  of  the  2Dth,  and  was  seen  from  the  shore  by 
thousands  of  persons.  The  customs  officers  were  on  board  when  she 
left,  and  only  left  her  when  the  tug  left."  As  early  as  July  4  Her 
Majesty's  Government  had  promised  Mr.  Adams  that  "  the  officers  at 
Liverpool  would  keep  a  strict  watch  upon  the  vessel."  After  she  loft, 
Her  Majesty's  government  gave  orders  to  seize  and  detain  her. 

Here  was  a  vessel  under  inquiry  as  to  probable  seizure  for  forfeiture, 
carrying  the  consequence  of  intercei)ting  her  illegal  enterprise.  She 
was  ready  to  sail "  at  any  hour,"  six  days  before  she  did  sail ;  the  Gov- 
ernnitnt  made  no  inquiry,  demanded  no  pledge,  took  no  precautious, 
placed  no  impediments  affecting  her  entire  freedom.  The  Government 
was  fully  informed  of  the  situation,  and  was  entreated  to  take  fictiou. 
The  Alabama  had  her  enterprise  before  her,  and  the  Government  had  its 
duty  to  defeat  it.  These  objects  and  interests  were  repugnant.  The 
Alabama,  being  wholly  unimpeded  by  the  Government,  sailed  before  the 
arrest  was  ordered.  The  Government,  knowing  all  about  the  situation, 
did  not  attempt  to  interfere  with  the  vessel's  movements. 

AVe  are  not  here  arguing  as  to  diligence  or  duty,  only  as  to  accident  or 
Cfl"?^9.  It  is  said  that  some  fortuitous  circumstance  retarded  the  decision 
of  the  Government.  JUit  the  Government  were  all  the  while  aware  that 
the  Alabama  could  sail  when  she  pleased,  and  that  she  was  uiuler  the 
most  powerful  motives  to  anticipate  the  adverse  action  of  the  Govern- 
ment by  sailing.    Sail  she  did  ;  and  this  may  be  put  to  the  account  of 


FAILURE    OF   GREAT    BRITAIN    TO    FULFIL    ITS    DUTIES. 


185 


cams,  wben  pursuing  au  expected  course,  under  adequate  motives,  and 
at  the  necessary  time,  is  properly  described  as  accidental. 

Equally  frivolous  seems  the  only  instance  that  is  pretended  of  any- 
thing' like  impositionhiixing  been  practised  on  Her  IMajesty's  Government 
in  the  course  of  these  transactions.  The  so-called  imposition  consists  in 
second-hand  statements,  that  the  Florida — which  was  the  counterpart 
of  one  of  Her  Majesty's  gunboats,  had  no  storage,  and  was  by  no  pos- 
sibility "  ancijntis  iisus  " — was  not  for  the  Confederate  war  service,  but 
belonged  to  a  firm  of  Thomas  Brothers,  of  Palermo,  in  Sicily.  Now,  as 
this  firm  of  IJritish  merchants  established  in  Sicilj^  had  no  recognition 
of  sovereignty,  or  even  of  belligerency,  it  was  very  plain  that  this 
ownership  of  a  war  ship  was  as  much  a  cover  as  John  Lairds  &  Sons', 
or  William  C.  Miller  &  Co.'s,  would  have  been.  Accordingly,  inquiries 
were  addressed  for  the  purpose  of  learning  whether  a  Government,  also 
suggested  as  a  possible  owner  of  this  war  vessel,  had  reallj'  any  interest 
ia  her,  and  they  were  answered  in  the  negative. 

The  worthlessness,  as  hearsay,  of  this  evidence  is  as  apparent  as  its 
falsehood  in  respect  to  the  fact,  and  we  only  recur  to  the  matter  as  being 
the  single  instance  of  imposition  which  is  claimed  to  have  occurred  in 
the  long  history  of  "  the  several  vessels  which  have  given  rise  to  the 
claims  generically  known  as  the  'Alabama  Claims.''' 

In  the  deliberations  of  the  Arbitrators,  which  are  to  guide  them  to 
their  actual  award,  they  will  have  occasion  to  consider  the  application 
of  the  second  and  third  liules  of  the  Treaty,  no  less  than  of  the  first  llule, 
to  all  the  situations  and  propositions  of  fact  and  of  law  that  arise  for  de- 
cision. It  is  not  necessary  to  distinguish  in  detail  the  special  cases  to 
v;\\Wh  one  or  the  other  liule  may  be  exclusively  or  pre-eminently  appli- 
cable. 

The   only   further  consideration  which  we  need  to  present,  under 
this  division  of  the  argument,  has  relation  to  the  vessels 
which   properly  come  within   the  jurisdiction  of   the  Tri-  ^ 
bunal. 

Observations  on  this  subject  in  the  Case  and  Counter  Case  of  the 
United  States  have  been  intended  to  show  that  the  whole  list  of  vessels, 
for  injuries  from  whose  acts  claims  are  presented  to  the  Tribunal,  is  in- 
cluded within  the  jurisdiction  conferred  in  and  by  the  first  article  of  the 
Treaty.  Wo  wish  simplv  to  add  a  reference  to  a  passage  in  the  protocol 
to  the  Treaty,  of  IMay  4,'  1871. 

A  statement  is  there  made  which  seems  to  possess  much  authority  in 
ascertaining  the  intent  of  the  Treaty  on  this  point.  It  is  found  on  page 
10  of  the  Case,  and  reads  as  follows : 

At  tlioconfi!i'cuce  held  on  tlicStlt  of  March,  the  American  Commissioners  stiitcd  *  * 
that  the  history  of  the  Ahihiuiiii  and  other  cruisers,  which  had  been  fitted  out,  or 
Jiniicd,  or  e([uippcd,  or  which  ha<l  received  auufinentation  of  force  in  Uroat  Britain,  or 
licr  Cokniies,  and  of  the  operations  of  those  vessels,  sliowed  extensive  direct  losses  in 
tlie  lapturo  and  destruction  of  a  lar<j;e  number  of  vessels,  with  their  car<j;oes-  and  in  tho 
lieavy  national  expenditures  in  the  pursuit  of  the  cruisers,  Sec, 

It  is  respectfully  submitted  that  this  description  of  the  protocol,  be- 
youil  all  controversy,  includes  the  whole  list  of  vessels  as  insisted  upon 
iu  the  Case  and  Counter  Case. 


\\\lM     v.v-nvl-.     .ill- 

■t    \\m'    iurisdii-lioh 
oi  thy  rribiin;ll. 


■J, 
I, 


XIII.-NATURE  AND  AMOUNT  OF  DAMAGES  CLAIMED  BY  THE 

UNITED  STATES. 


I.— PRE  FA  TORY    CONSIDERATIONS. 

1.  The  Counsel  of  the  Uuited  States  assume  that,  in  the  foregoing' 

observations,  ami  the  proofs  which  they  have  adduced  and 
*  '""'  ""'"'"'■  expounded,  they  have  established  the  responsibility  of  the 
British  Government  in  the  premises. 

The  legal  character  of  this  responsibility  is  defined  by  the  Treaty  of 
Washington.  It  is  matter  of  express  contract  between  the  two  Govern- 
ments. 

The  contracting  parties,  in  the  first  place,  agree  to  certain  "Rules,''  by 
which  the  conduct  of  the  British  Government  in  the  premises  is  to  be 
judged.  These  "Rules"  constitute  the  j)rinciples,  upon  which  it  is  to  be 
conventionally  assumed  that  the  British  Government  acts,  as  to  the 
questions  here  at  issue.  These  "Rules"  profess  to  define  the  general 
obligations  of  a  neutral  Government.  They  expressly  set  forth  to  what 
such  a  government  is  bound.  They  are  understood  %  the  tenor  of  the 
treaty  to  define  expressly  what  the  British  Government  was  bound,  iu 
the  occurrences  debated,  to  do  or  not  to  do  with  respect  to  the  United 
States. 

2.  The  Counsel  of  the  United  States  have  apjdied  these  Rules  to  the 
acts  of  commission  or  omission  of  the  British  Government,  with  con- 
clusion as  follows : 

{(()  The  British  Government  did  not  use  due  diligence  to  prevent  the 
fitting  out,  firming,  or  equipping,  within  its  Jurisdiction,  of  certain  ves- 
sels, which  it  had  reasonable  grounds  to  believe  were  intended  to  cruise 
or  carry  on  war  against  the  United  States. 

(&)  The  British  Government  did  not  use  like  diligence  to  prevent  the 
departure  from  its  jurisdiction  of  certain  res?'^ls  to  carry  on  war  against 
the  United  States,  such  vessels  having  been  specially  adapted,  in  whole 
or  iu  part,  within  such  jurisdiction,  to  warlike  use. 

(c)  The  British  Government  did  permit  or  suft'er  the  belligerent  Rebels 
of  tlie  United  States  to  make  use  of  the  x>orts  or  waters  of  Gre.itBitaiii 
as  the  base  of  military  operations  against  the  United  States,  or  for  the 
purpose  of  renewal  or  augmentation  of  military  sui)plies  or  arms,  or 
the  recruitment  of  men  for  naval  warfare. 

{(1)  The  British  Government  did  not  use  due  diligence  in  its  own  ports 
and  waters,  and  as  to  all  persons  within  its  jurisdiction,  to  i)revent  any 
violation  of  the  stipulated  rules,  (Article  VI.) 

(f)  Finally,  the  British  Government  has  failed  to  fulfill  certain  duties, 
recognized  by  the  principles  of  international  law,  not  inconsistent  with 
the  foregoing  "Rules." 

3.  We  think  we  have  shown  that  the  British  Government  is  respousi 
ble  under  these  Rules  for  all,  or  at  any  rate  for  certain,  ot 
the  cruisers  in  question.  If  the  Arbitrators  come  to  the 
same  conclusion,  then  they  are  to  award  a  sum  in  gross  for 

the  claims  referred  to  them,  to  be  paid  by  Great  Britain  to  the  United 
States ;  or,  after  deciding  the  failure  of  the  British  Government  to  fulfill 
its  duties  as  aforesaid,  they  may  remit  the  question  of  amount  to  asses- 


Grc:»t  TUitaiii  n  ■ 
FlHtiiMtili*  liT  Ihe  aits 
of  tht'  ci  uiM-rH. 


NATURE    AND   AMOUNT    OF   DAMAGES. 


187 


sors  to  determine  what  claims  are  valid,  and  what  amount  shall  be  paid 
ou  account  of  the  liability  arising  from  such  failure,  as  to  each  vessel, 
according  to  the  extent  of  such  liability,  as  decided  by  the  arbitrators, 
(Article  X.) 

Thus  it  appears  that  the  Treaty  i)rovides,  by  various  forms  of  expres- 
siou,  that  the  liability  of  Great  Britain  to  pay  follows  on  the  conviction 
of  (ireat  Britain  of  failure  to  perform  her  duty  in  the  premises,  in  coii- 
lormity  with  the  law  of  nations  and  the  contract  "  Rules." 

4.  What  is  the  measure  of  this  liability  ?  Such  is  the  question 
vliich  remains  to  be  discussed.  m,.,,,,,^,.  „r  ,,„. 

The  Counsel  of  the  United  States  respond  to  this  question  '"'">  """ '"•  ^ 
in  general  terms  as  follows : 

The  acts  of  commission  or  omission  charged  to  the  British  Government 
ia  the  premises  constituted  due  cause  of  war  ;  in  abstaining  from  war, 
and  consenting  to  substitute  indemnity  by  arbitration  for  the  wrongs 
)<iifl'ered  by  the  United  States  at  the  hands  of  Great  Britain,  the  United 
States  are  entitled  to  redress  in  damages,  general  and  particular,  national 
and  individual,  coextensive  with  the  cause  of  war,  that  is  to  say,  sufli- 
lient  to  constitute  real  indemniticatiou  for  all  the  injuries  sufi'ered  by 
the  United  States. 

The  Tribunal,  in  order  to  give  such  complete  indemnity  to  the  United 
States,  would  have  to  take  up  and  consider  each  one  of  the  ^,  ^  ^  ^  ^ 
heads  of  claim  set  forth  in  the  American  Case.  ^.I''ll'.rTh  "...'"nni 

These  are : 

((()  The  claims  for  private  losses  growing  out  of  the  destruction  of 
vessels  and  their  cargoes  by  the  insurgent  cruisers. 
[b)  The  national  expenditures  in  pursuit  of  those  cruisers. 
((■)  The  loss  in  the  transfer  of  the  American  commercial  marine  to 
the  British  Hag. 
\(1)  The  enhanced  payments  of  insurance  by  private  persons. 
(f)  The  prolongation  of  the  war,  and  the  addition  of  a  large  sum  to 
the  cost  of  the  war,  and  of  the  suppression  of  the  Kebellion. 

0.  All  these  claims  are,  as  we  conceive,  clearly  com])rehended  in  the 
positive  terms  of  the  Treaty. 

Whether  any  of  such  claims,  or  any  part  of  them,  are  .MM'pn'h.mMtnthe 
so  remote  in  their  nature  in  relation  to  the  acts  of  the  Con-  "'""""  ""^  '"'^" 
ledcrate  cruisers  as  to  demand  rejection  by  ai)plication  of  the  rule  of 
ordinary  law,  "  Canm  pyoxima,  non  rcmota  special ur,''^  is  a  juridical 
qnestiou  to  be  argued  as  such  before  the  tribunal  ou  the  facts,  not  a 
Huestion  of  the  tenor  of  the  Treaty. 

G.  All  the  claims  enumerated  are  of  losses  ''growing  out  of  the  acts'* 
iif  the  Confederate  cruisers;  all  of  them  arc  the  actual  conse<iuences  of 
those  ac<^'^  •  whether  to  be  allowed  as  proximate  consequences,  or  to  be 
ilisallowfd  as  remote  consequences,  it  is  for  the  Tribunal  to  decide. 

Snch  comprehensiveness  of  the  Treaty  is,  in  the  opinion  of  the  Coun- 
sel of  the  United  States,  the  apparent  meaning  of  the  Treaty;  it  is  the 
'•Illy  grammatical  meaning,  it  is  the  logical  meaning,  it  is  the  true  mean- 
ing; of  the  Treaty. 

The  Treaty,  in  Avords  of  unmistakable  universality,  submits  to  the 
Ti'ibuual  all  differences,  all  claims,  all  questions  growing  out  of  the  acts 
of  the  cruisers  under  consideration. 

The  language  is  unequivocal.  There  is  no  exception  of  any  particular 
(lass  or  speciality  of  "  difterence,"  "  of  claim,"  of  question,  "  growing  out 
of  the  acts  of  such  cruisers."  Not  a  word  is  said  of  direct  claims,  or  of 
indirect  claims.  If  any  such  exception  were  contemplated  or  intended 
hy  either  party,  he  abstained  from  inserting  it,  or  any  hint  of  it,  in  the 
'i'reaty  itself. 


4 


iS*'l5'-  a  m  I 


p. 


.?i 


firpfit  llrilain  ron- 

•  iPijiU  thiit  tluMliiiniM 

Blylfii      •'  iiiiliiHct  '' 

are    not   witliin    thfi 

Hcope  ufthe  Arliitra- 


The    tt^rin 
ri'i-t "    nut    1. 
the  Treaty, 


"iii.li- 
ukI  ii. 


188  ARGUMENT    OF    THE    UNITED    STATES. 

II.— QUESTION    OF    JURISDICTION. 

The  Agent  of  the  British  Governmeut,  by  a  letter  commuuicated  to  the 
Arbitrators  ou  the  15th  of  April,  iuformed  them  that  a  misiintlerstauding 
had  arisen  between  the  two  Governments  as  to  "  the  nature  and  extent 
of  the  claims  referred  to  the  Tribunal ;"  and  the  Agent  of  the  United 
States  in  reply  reserved  to  his  Government  the  right  to  vindicate  the 
disputed  jurisdiction  of  the  Tribunal  before  the  Arbitrators.  This  we 
shall  now  proceed  to  do. 

1.  The  British  Government  contends  that  certain  so-called  "  indirect 
claims"  are  not  included  in  the  Arbitration.  We  contend 
that  the  Treaty  itself  contains  no  sentence,  expression,  or 
word,  to  justify  this  assumption.  On  that  point  we  appeal 
to  the  text,  inspection  of  which  is  decisive  and  conclusive  of 

the  question. 

2.  The  British  Government  in  eflFect  seems  to  admit  that  the  text  of 
the  Treaty  is  all-comprehensive  in  description  of  the  nature 
of  the  claims,  as  claims  growing  out  of  the  acts  of  certain 
vessels,  and  leaving  no  subject  of  inquiry-,  save  in  the  de- 
scriptive words  "generically  known  as  Alabama  claims,"  that  is,  by 
reference  to  the  ])rincipal  vessel  of  the  class. 

But  this  expression,  "  generically  known  as  Alabama  claims,''  does 
not  involve  any  question  of  "  direct"  or  ''  indirect."  No  such  distinction 
is  implied  in  the  words  themselves,  or  in  the  context. 

o.  Accordingly,  the  British  Government  insists,  not  so  much  on  the 
language  of  the  Treaty,  as  what  they  intended  when  they 
assented  to  it. 
To  this  assumption  it  is  obvious  to  reply,  first,  that  no 
such  intention  is  expressed  in  the  Treaty;  that  such  intention  was  not 
the  understanding  of  the  United  States ;  'hat  if  Great  Britain  had  any 
such  intention  she  should  have  insisted  on  its  insertion  in  the  Treaty ; 
that  as  both  parties  used  the  same  language,  there  could  be  no  room  for 
misapprehension  in  this  respect ;  that  the  intention  of  parties  to  a  con- 
tract is  recorded  in  the  contract ;  and  that  if,  by  reason  of  equivocal 
language,  any  doubt  arises,  it  is  not  for  either  of  the  parties  to  assume 
to  decide  the  question,  but  it  is  a  question  for  the  decision  of  the  Tri- 
bunal. 

The  Counsel  of  the  United  States  are,  however,  prepared  to  show  that 
Great  Britain  had  ample  notice  of  the  extent  of  the  submission  as  it  was 
understood  by  the  United  States ;  that  is  to  say,  the  claims  of  the  United 
States,  in  the  whole  extent  of  the  American  Case,  were  again  and  again 
presented  to  the  consideration  of  the  British  Government,  both  before 
and  during  the  negotiation  of  the  Treaty,  as  appears  by  the  documents 
annexed  to  the  Case.    This  w'C  shall  presently  proceed  to  show. 

4.  Before  doing  this,  we  call  more  particular  attention  to  the  equivocal 
nature  of  the  expression  "indirect  damages"  or  "direct 
damages,"  as  employed  by  the  British  Government. 

To  w  hat  injuries  or  losses  do  these  words  refer  1  Eeuiote 
consequential  injuries  or  losses ?  By  no  means;  but  chiefly  to  the  im- 
mediate national  injuries  suffered  by  the  United  States. 

The  discussions  on  the  part  of  the  British  Government  are  founded 
upon  the  assumption  that  the  injuries  which  one  nation  does  to  another 
as  a  nation  are  indirect  injuries.  We  think  that  such  injuries  are,  ou 
the  contrary,  emphatically  d'^ect  in  their  very  nature. 

5.  To  the  specification  of  such  claims,  when  they  come  to  be  considered 
in  detail,  objection  may  be  made,  that  such  or  such  particular  loss  is  re- 


■RfjoimliT    of    til' 

T'llit'Ml  .-ifjltMS    to   til' 

Britjah  asaunjjuion. 


"  I  n  il  i  r  f  c  I,"  !i  s 
llHeil  iti  this  rnntro- 
vf^rsy,  is  c(|uivalL'iit 
to  "uatjontil." 


NATURE   AND   AMOUNT    OF   DAMAGES. 


189' 


f?  t'l 


mote  and  not  proximate ;  but  that  is  a  question  wbicli  arises  in  the  con- 
sideration of  the  facts.  It  in  no  respect  attects  the  generality  or  com- 
prehensiveness of  the  expression  "all  claims  growing  out"  of  certain  acts. 

6.  In  order  to  demonstrate  that  the  British  Government  ought  not  to 
have  been  ignorant  of  the  precise  claims  now  objected  to,  under  what- 
ever name  the  subject  of  negotiation,  we  now  inoceed  to  cite  the  docu- 
mentary proofs. 

(rt)  The  Joint  High  Commissioners,  in  their  negotiations  which  pre- 
ceded the  Treaty  of  Washington,  made  use  of  the  terms     ,h.  «r,r,i  ■  ,n,i,- 
" indirect  losses"  and  "direct  losses,"  and  these  terms  were  r',!,,„''n' \Vi",'!!'  "I;; 
subsequently  transferred  from  the  protocols  of  the  confer-  -i'"'"'"' t^  <> 
euces  of  the  negotiations  to  the  American  Case. 

(b)  In  the  public  discussions  which  have  si'.ce  arisen,  the  terms  have 
apparently  been  received  in  a  ditterent  sense  from  that  in 

which  they  were  employed  by  the  negotiators,  and  accepted  .'.';!'„.  "t'lul'li""!," 
by  the  two  Governments. 

It  has  been  assumed  by  many  persons,  who  were  but  partially  ac- 
(juaiiited  with  the  history  of  the  negotiations,  that  the  United  States 
;iic  contending  before  this  Tribunal  to  be  indemnified  for  several  inde- 
pendent series  of  injuries ;  whereas  they  do,  in  fact,  ask  reparation  but 
for  one  series  of  injuries,  namely,  those  which  they,  as  a  Nation,  either 
directly  or  through  their  citizens,  and  the  persons  enjoying  the  protection 
of  their  flag,  have  suffered,  by  reason  of  the  acts  committed  by  the 
several  vessels  referred  to  in  their  case,  which  are  generically  known  as 
the  Alabama  claims.  When  the  Treaty  was  signed,  both  parties  evi- 
dently contemplated  a  discussion  before  the  Arbitrators  of  all  the  dara- 
ajies  which  conld  be  shown  or  contended  to  have  resulted  from  the 
injuries  for  which  the  United  States  were  seeking  reparation. 

(c)  In  order  to  bring  any  claim  for  indemnity  within  the  jurisdiction 
of  the  Tribunal,  the  United  States  understand  that  it  is 
necessary  for  them  to  establish:  1st,  that  is  a  claim ;  2d, 
that  at  the  date  of  the  correspondence  between  Sir  Edward 
Thornton  and  ]\[r.  Fish,  which  led  to  the  Treaty,  it  was  generically  known 
as  an  Alabama  claim  ;  and,  od,  that  it  grows  out  of  the  act  of  some  one 
of  the  vessels  referred  to  in  their  Case.  They  also  understand  that  the 
Tribunal  of  Arbitration  has  full  jurisdiction  over  all  claims  of  the  United 
States  which  can  be  shown  to  possess  these  three  attributes. 

A  review  of  the  history  of  the  negotiations  between  the  two  Govern- 
meuts  prior  to  the  correspondence  between  Sir  Edward 
Thornton  and  Mr.  Fish,  will  shoM'  the  Tribunal  what  was 
intended  by  these  words,  '■^ {lenerkaJhj  liiown  as  the  Alabama 
(?«/«i.v,"  used  on  each  side  in  that  correspondence. 

(d)  The  correspondence  between  the  two  Governments  was  opened  by 
Mr.  Adams  on  the  20th  of  November,  18G2,  (less  than  four 
months  after  the  escape  of  the  Alabama,)  in  a  note  to  Earl 


\\'ti:it  cliiiini  rirff 
.iliiii  lilt'  j'lri^iiM-- 
m  or  tilt!  TriljuiKiU 


R.-stiint- 
tl;i!itiiii 
AI:tb:UIl!l  < 


of    lir'Cn- 
i-pt'tilig 


:Mr-.     Atiiiint".      Nti- 
VfUiltiT,     M;-.'.     ri-k.t 

llussell,  written  under  instructions  from  the  Government  of  r.,iT|'nau.m'a'''?,ihi'.' 
the  United  States.    In  this  note  Mr.  Adams  submitted 
•lence  of  the  acts  of  the  Alabama,  and  stated :  "  I 


evi- 
Alabama,  and  stated :  "  I  have  the  honor  to 
inform  your  Lordslii]>  of  the  directions  which  I  have  received  from  my 
(rovernment  to  solicit  redress  for  the  national  and  private  injuries  thus 
sustained."! ' 

Thus  the  Government  of  the  United  States  in  the  outset  notified  Her 
Majesty's  Government  that  it  would  expect  indemnification  from  Great 
Britain  for  both  the  national  and  the  individual  losses,  and    Ti„„imy,i..„,.ji,y 
I  J^ord  Kussell  met  this  notice  on  the  19th  of  December,  1802,  ''■™" ""'"" 

'  Aiuorictiu  Appendix,  vol.  iii,  pp.  7)1, 73. 


1        'r 


•  I 


i 


190 


ARGUMENT    OF   THE    UNITED    STATES. 


i 


growing' 


out  of  the  act.s  ol 


lUAH         If>       rfl|M<|llli4ll 


Many  <■  I  ,i  i  iti  •* 
lM<lt>e.l  (litniiK  tli)> 
w:ir,  hnl  (lihi'iisrtiuu 
tielerred. 


by  a  denial  of  any  liability  for  any  injuries 
tlio  Alabama.^ 

When  this  decision  Mas  couuuunicated  to  the  Government  of  the 
United  States,  jMr.  Seward  informed  Mr.  Adams  that  that 
(rovernment  did  "not think  itself  bound  in  justice  toielin. 
quisli  its  claims  for  redress  for  the  injuries  which  have  re 
suited  from  the  fitting  out  and  dispatch  of  the  Alabama  in  a  lUitish 
port."    This  statement  could  have  referred  only  to  the  claims  for  na 
tional  and  for  indi\  idual  redress  which  had  been  thus  preferred  and  re- 
fused. 
As  new  losses  from  time  to  time  were  suffered  by  individuals  diniiij.' 
the  war,  they  were  brought  to  the  notice  of  Jler  INIaje  sty's 
Government,  and  were  lodged  with  the  national  and  iiuli 
vidual  claims  already  preferred  ;  but  argumentative  discus 
sion  on  the  issues  involved  was  by  common  consent  deferred.^ 

In  the  course  of  these  incidents,  Mr.  Adams  had  an  interview  witii 
Earl  Itussell,  (described  in  a  letter  from  Lord  Eussell  to  Lord  Lyons. 
dated  March  27,  1SG3,)  in  which,  referring  to  the  well-known  and  per 
initted  conspiracy  organized  in  Great  Britain  to  carry  on  war  against 
the  United  States  through  a  naval  marine  created  in  British  waters. 
and  to  the  means  ostentatiously  taken  to  raise  money  in  London  for  tliat 
purpose,  he  said,  that  there  was  "  a  manifest  conspiracy  in  this  country 
[Great  Britain]  to  produce  a  state  of  exasperation  in  America,  and  thus 
bring  on  a  war  with  Great  Britain,  tvith  a  view  to  aid  the  Coufederatt 
causc.^^  And  on  the  23d  of  October  in  the  same  year,  (1SG3,)  IMr.  Adams 
proposed  to  Earl  Bussell  for  the  settlement  of  these  claims  "  some  fair 
and  conventional  form  of  arbitrament  or  reference."  ^ 
It  does  not  appear  that  during  the  war  the  exact  phrase  "  Alabama 
claims,"  was  used  in  the  correspondence  between  the  two 
Governments.  But  it  does  appear  that,  in  the  note  in  whicli 
the  claims  of  the  United  States  for  the  injuries  growing  out 
of  the  acts  of  the  Alabama  itself  were  first  preferred,  the  Uuit-xl  States 
presented  the  claims  of  their  citizens  for  the  losses  in  the  destruction  ot 
the  Ocmulgee,  and  some  other  vessels,  by  the  Alabama,  and  also  their 
owii  claim  for  national  injuries  caused  by  the  acts  of  the  same  vessel : 
and  that  liability  for  all  such  injuries  being  denied  by  Great  Britain. 
and  re-asserted  by  the  United  States,  the  discussion  was  reserved  for  a 
more  convenient  time  by  common  consent. 

When,  as  already  stated,  new  injuries  were  received  from  the  acts  of 
other  vessels,  as  well  as  from  acts  of  the  Alabama,  claims  therefor  were 
added  to  the  list  to  be  all  taken  up  together  when  the  time  should  ar 
rive.    The  fact  that  the  first  claim  preferred  grew  out  of  the  acts  of  tlie 
Alabama  explains  how  it  was  that  all  the  claims  growing  out  of  the 
acts  of  all  the  vessels  came  to  be  "  generically  known  as  the  Alabama  j 
claims." 
On  the  7th  of  April,  18G5,  the  war  being  virtually  over,  Mr.  Adams 
renewed  the  discussion.     Ue  transmitted  to  Earl  Eussell  an 
official  report  showing  the  number  and  tonnage  of  Aiueri 
can  veSii^els  transferred  to  the  British  flag  during  the  war, 
He  said,  "  The  United  States  commerce  is  rapidly  vanishing  from  the 
face  of  the  ocean,  and  that  of  Great  Britain  is  multiplying  in  nearly  the 
same  ratio."    "This  process  is  going  on  by  reason  of  the  action  of  Brit 
ish  subjects  in  co-operation  with  emissaries  of  the  insurgents,  who  have  j 

'  American  Appendix,  vol.  iii,  p.  83. 

-Mr.  Adams  to  Earl  Russell,  Am,  App.,  vol.  ii,  p.  641, 

3  Am,  App.,  vol.  ii,  p.  182. 


Vl'-».tsniiH  for  r;((linfi 
;)ll  111.'  i-liinin  "Ala- 
ij.iniii  flHiln-." 


In  April.  ISCi.'i, 
ljnilei\  Sl;iU'3  rertcw 
'-l:9<.-tifl#iori. 


sap])lie 
such  a; 
fective 
Britain 


^ 


NATL'RE    AND    AMOUNT    OF    DAMAGES. 


191 


fir.vit   lint. nil    f 


r.r 


ii  .ir  i,i',.i.tv 


supplied  from  the  ports  of  Iler  ^Majesty's  Kingdom  all  the  materials, 
sucli  as  vessels,  armament,  supplies,  ami  men,  imlispeiisable  to  the  ef- 
fective prosecution  of  this  result  on  the  ocean.''  lie  asserted  that  "  Great 
Britain,  as  a  national  Power,  was  fast  acrpiiring  the  entire  maritime 
coinnierce  of  the  United  States  by  reason  of  the  acts  of  a  portion  of 
UerM.njesty's  subjects,  engaged  in  carrying  on  war  against  them  on  the 
ocean  during  a  time  of  peace  between  the  two  countries  ;"  and  he  stated 
that  he  was  "nnder  the  painful  necessity  of  announcing 
that  his  Gorernment  cannot  avoid  cntailinp  upon  the  Gorcrn- 
molt  of  Great  Britain  the  rcsponsihiUti/  for  thin  damaffv."' ' 

Lord  liussell  evidently  regarded  this  as  an  unequivocal  statement  of 
a  determination  to  hold  Great  Britain  responsible  for  at  least 
*a  portion  of  the  national  injuries  growing  out  of  the  acts 
of  the  cruisers.  lie  said,  in  rejdy,  "  I  can  never  admit  that  the  duties 
of  Great  Britain  toward  the  United  States  are  to  be  measured  by  the 
losses  which  the  trade  and  commerce  of  the  United  States  have  sus- 
tained." - 

Mr.  Adams,  in  his  reply  on  the  20th  of  jMay,  repeated  the  demand. 
He  referred  to  the  destruction  of  individual  vessels  and  car-  „„  Hr,.,,  .1  ,. 
goes,  and  said  that,  "  in  addition  to  this  direct  injury,  the  ',;'V'i'iim!.'',;:  '■"h 
action  of  these  British  built,  manned,  and  armed  vessels  ;:,;;.'.  "„':',  ,,i;'|;„i 
has  had  the  indirect  eftect  of  driving  from  the  sea  a  large  '-"'"''"' f^^ '"• 
portion  of  the  commercial  marine  of  the  United  States,  and  to  a  corre- 
sponding extent  enlarging  that  of  Great  Britain."  He  declared  that 
"  the  very  fact  of  the  admitted  rise  in  the  rate  of  insurance  on  Ameri- 
can ships  only  brings  us  once  more  back  to  look  fit  the  original  cause  of 
the  trouble  ;"  and  he  again  said,  that  "  the  injuries  thus  received  are  of  so 
grave  a  nature  as  in  reason  and  Justice  to  constitute  a  valid  claim  for  rep- 
((ration  and  indemnification.-'' ^ 

It  will  be  observed  that  the  attention  of  Her  IMajesty's  Government  is 
thus  called  in  terms  to  a  distinction,  which  has  siii'-e  become  the 
subject  of  some  controversy,  between  what  were  styled  "  direct"  and 
what  were  styled  "  indirect"  injuries,  and  that  it  was  made  clear  beyond 
a  question  that  the  United  States  intended  to  claim  remuneration  for 
all. 

Lord  Russel  so  understood  it,  and  said  in  reply  : 

It  socins  to  Ilor  Majer^ty's  Government  that,  if  the  liability  of  neutral  nations  were 
stittched  thus  far,  this  pretention,  new  to  the  law  of  nations,  would  ^^.^^  nT^um  .i,- 
Ix' most  bnrdensome,  and  indeed  most  dangerous.  A  maritime  Nation,  nn-'/iViliiiiitv ""  imi^ 
whose  people  occupy  themselves  in  constructing  ships  and  cannon  and  \ZLu!nx  'I'.'r'di'rwt 
arms,  miglit  he  made  responsible  for  the  whole  damages  of  a  war  in  lVmux*. 
•wbich  that  Nation  had  taken  no  part.^ 

Referring  to  the  offer  of  arbitration,  made  on  the  2Gth  day  of  October, 

1863,  Lord  Russell,  in  the  same  no  te,  said : 

Her  M.ijesty's  Government  must  decline  either  to  make  reparation  and  compensation 
for  the  captures  made  by  the  Alabama,  or  to  refer  the  ((uestion  to  any  foreign  State."' 

(c)  This  terminated  the  first  stage  of  the  negotiations  between  the 
two  Governments.  They  commenced  with  the  demand  on  the  part  of 
the  United  States  for  remuneration  for  national  and  for  individual  losses 
growing  out  of  the  acts  of  the  Alabama,  and  a  denial  of  the  liability  on 
the  other  side.  This  was  followed  up  by  similar  demands  for  injuries 
growing  out  of  the  acts  of  other  vessels,  and  by  a  proposal  to  submit 
the  claims  to  arbitration. 

The  negotiations  were  closed  by  the  repudiation  of  any  possible  lia- 


'  Am.  App.,  vol.  i,  p.  290;  vol.  ill,  p.  522. 
'Ibid.,  vol.  i,  p.  fAG. 
•Am.  App.,  vol.  iii,  p.  553. 


*  Ibid.,  p.  361. 
■•  Ibid.,  p.  562. 


192 


ARGUMENT    OF    THE    UNITED    STATES. 


niilliiir  <<r  iIk 
"  Alfil'iiinll   I'l; 


•II  Ihi- 
'  ttrm 
tint-." 


1h 
krii>» 
lutili. 


I,r;n      ".11 
jJi    111  I r. 


bility  of  (treat  Britain  for  national  injuries,  as  being  a  doctrine  "  most 
dangerous"  to  neutrals,  and  by  the  refusal  to  arbitrtite  the  question  ot 
the  captures  of  vessels  and  cargoes  of  individuals  made  by  the  Alabama. 
It  V,  ill  be  observed  that  Lord  Kussell  here  uses  the  word  "  Alabama" 
in  a  generic  sense.  The  note  of  Mr.  Adams  to  which  he  was 
replying  complained  of  "the  burning  and  destroying  on  the 
ocean  a  large  number  of  merchant-vessels  and  a  very  large 
amount  of  property  belonging  to  the  people  of  the  United  States  by  a 
nuuibev  of  British  vessels.'"  The  Parliamentary  paper  from  which  this 
extract  is  cited  is  styled  "Correspondence respecting  the  Shenandoah."' 
3Ir.  Adams's  note  refers  to  the  acts  of  the  Shenandoah,  the  Florida,' 
and  the  Alabama.'  Lord  KusscU's  note  also  refers  to  the  Oreto'  and  the 
Shen.tiidoah.''  It  is  evident  therefore  that  when  he  denies  liability  and 
refuses  the  arbitration  as  to  the  acts  of  the  Alabama,  he  uses  the  word 
"Alabama''  in  a  generic  sense. 

The  conclusion  is  irresistible  either  that  the  Alabama  then  stood  as 
the  generic  representative  of  all  the  vessels,  or,  on  the  other  hand,  that 
Lord  IJussell  first  endowed  the  word  Alabama  with  a  generic  sense. 
{(l)  Tiie  evidence  before  the  Tribunal  does  not  show  the  use  of  the  ex- 
act exin-ession  "Alabama  claims"  before  October  4,  ISOG. 
It  then  appeared  in  a  leader  in  the  London  Times,  in  the 
course  of  whicli,  after  referring  to  the  "so-called  Alaltama 
claims,"  it  is  said:  "The  loss  occasioned  by  American  commerce  in 
consequence  may  be  daniiunn  sine  iujiouu,  and  therefore  no  ground  of  a 
legal  action,  and  yet  it  may  be  a  wise  act  of  courtesy  to  waive  the 
benefit  of  this  i)lea."  It  follows  from  this,  that  at  that  early  day  the 
phrase  "Alabama  claims"  had  become  so  well  known  as  to  be  styled 
"  so-called." 
Great  Britain  having  thus  possessed  herself  of  a  large  part  of  tlie 
American  comnu^jcial  marine,  through  the  acts  of  the 
cruisers  disi)atclied  from  her  ports  to  carry  on  war  against 
the  United  States,  and  having  refused  not  only  to  make  iu- 
demnity  therefor,  but  also  to  submit  the  (juestion  of  her  liability  to  ar- 
bitration, Lord  Enssell  next  propose*!,  with  Avhat  makes  approach 
at  least  to  audacity,  "  the  appointment  of  a  commission  to  which 
shall  be  referred  all  claims  arising  during  the  late  civil  war,  which  the 
two  Powers  shall  agree  to  refer,"  excluding  of  course  the  Alabama 
claims ;  in  other  words,  that  the  extravagant  claims  of  British  subjects 
upon  the  United  States  should  be  recognized,  while  the  grave  injuries 
to  the  United  States  and  their  citizens  should  be  ignored.  Great  Britain 
also  proposed  to  guard  against  a  possible  retrausfer  of  the  commercial 
marine  to  the  United  States  under  the  same  circumstances,  when  VA\g- 
land  should  be  a  beUigerent  and  the  United  States  should  be  neutral,  by 
letting  "by-gonesbeby-gones,"  "forgetting  the  past,"  and,  "as  each  had 
become  aware  of  defects  that  existed  in  international  law,"  "attemptiu? 
the  improvements  in  that  code  which  had  been  proved  to  be  necessary.'" 
Mr.  Seward  in  reply  said : 

Tberc  is  uot  one  moniber  of  this  Government,  and,  so  far  as  I  know,  not  one  citizen 
initf.i  stntr-i.ie-  °^  ^^^  Uuitcd  Statcs,  who  expects  that  this  country  will  waive,  in  any 
.111,.'.  lonniM  uny'oi  casc,  tlic  dcuiands  tliat  we  Lave  heretofore  made  ujwn  the  Briti>sb  Gov- 
ihrjr  clonus.  emuient  for  redress  of  wrongs  committed  iu  violation  of  interuatiounl 

law.  I  think  that  the  country  would  he  etjually  unanimous  in  declining  every  Ibriuot 
negotiation  that  should  have  iu  view  merely  prospective  regulations  of  national  inter- 
course, so  long  as  the  justice  of  our  existing  claims  for  indemnity  is  denied  l>y  Ihi 

'  Brit.  App.,  vol.  iv,  paper  v,  p.  10.  ■•Ihid.,  p.  22. 

-Ibid., p.  11.  f^Ibid.,  p.  3. 

'Ibid.,p.  la. 
*>  Lord  Clarendon  to  Sir  F.  Bruce,  Brit.  App.,  vol.  iv,  paper  5,  p.  1C4. 


T.nril  l!u"i  II   r. 

l.Iiw^  ll>  ll'l  1)  -tl.l; 

tie  i'V-^oiit'S. 


NATFRi:    AM)    AMolNT    OF    DAMAOKS. 


lO.'i 


■   S'  11,1.  >   .1.. 

IMIXt'lltlOII, 


.\|;iii>t>'s  (Joscrmiiiiit,  iiiul  Mhvsc  diiiiiis  arc  ri'luHcd  Id  lie  iiiiulr  tlic  siilijcct  ol  iViriKllv 
liiii  iiiipai'tial  I'Xiiiiiiimlioii."  ' 

(M  111  tlic  siimiiuT  of  ISIjO  a  cliaii;:!'  of  Ministry  took  pliuo  in  lOiiyhuiil, 
and  Lord  Stanley  Ix'ciiine  S«'«'i('tary  of  State  for  l''orei<>ii 
AH'iiir.s  in  the  place  of  Lonl  Clarendon.  lie  took  an  early 
opportunity  to  yive  an  intimation  in  the  House  of  Coninions  tliat  should 
till'  rejected  elainis  be  rtnived,  tlu'  new  Cabinet  was  not  prepared  to  say 
wliiit  answer  inij^ht  be  ••iven  them  ;  in  other  words,  t!;at,  should  an  op- 
portunity be  offered,  Li>rd  Jtussell's  refusal  ini;;ht  possibly  lt<'  reeonsid- 

.Mr.  Si'wartl  met  these  oyertnres  by  instriKitinj''  ^[r.  .Vdanis,  on  the 
'.'Ttii  of  Au;j[ust,  1<S(!(»,  "to  call  Ijiu'd  Stanley's  attention,  in  a  respectful 
hut  earnest  manner,"  to  ''a  summary  of  claims  of  citi/eiis  of  the  United 
States,  fo.'  damages  which  were  suttered  by  them  ibirinj;  the  [)oriod  of 
tluM'ivil  war,''  and  to  say  that  the  (Jovernment  of  the  IJiiited  States. 
"irhile  it  thus  i.n.si.st.s  upon  these  jKO'tirnlar  elaiins,  is  neither  desirous  nor 
willinfj  to  assume  an  attitude  unkind  and  unconciliatory  toward  (rreat 
liritiiin."  lie  also  said  that  he  tliou<>ht  that  Her  Majesty's  (Joy«'rnment 
could  not  reasonaVdy  obJe(!t  to  acknowledge  the  claiins.- 

liord  Stanley  met  this  oyerture  by  a  communication  to  Sir  Frederick 
ihiice,  in  which  he  d(Miied  the  liability  of  (Innit  Uritaiii,  and  assented 
to  ii  reference,  "proyided  that  a  lifting  Arbitrator  can  be  found,  and 
that  an  a<>reement  can  be  <'oine  to  as  to  the  points  to  which  the  arl)itra- 
tioii  shall  apply.' 

A  loiij"'  ne<i'otiatioii  ensued.  In  the  course  of  it  Mr.  Seward  wrote  to 
Mr.  Adams  thus,  on  the-'Jd  of  ^lay,  LSflT: 

A-i  tilt' cast' now  stands,  tlic  injui'it's  liy  wliich  tlic  I'liitcMl  State's  arc  i);;iiri('VO(l  arn 
nut  ihiflly  t lie  actual  Josses  siistaiiit-d  in  tht!  S(!vcral  dcpi'tMlatioii.s.  but  lliu  lirst  iiii- 
iiiciiilly  Of  wrongful  proceeding;-  of  which  they  are  but  theconseriMunees. 

(_/■)  The.se  negotiations  Mere  conducted  in  London,  partly  by  Lord 
Stanley  and  i)artly  by  l^ord  Clarendon,  on  the  IJritish  side,  and  [tartly 
hy^lr.  Adams  and  partly  by  31r.  Ivcverdy  Johnson,  on  the  .Vmerican 
side.  In  \Va.shin;;ton  Mr.  Seward  remained  the  Secretary  of  State. 
(Iroat  liritain  was  there  represented,  tirst  by  Sir  riederick  JJruce,  and 
afterward  by  Sir  Kdward  Thornton. 

1.'/)  As  the  lirst  result  of  these  negotiations,  a  convention  knoNyii  as 
tliL'  Stanley-Johnson  convention  was  signed  at  Loiulou  on  the  lOth  of 
Xoveinber,  l.SdS.     Jt  proved  to  be  unacce])table  to  the  Government  of 
tlio  United  States.     Negotiations  \yere  at  once  resume<l,  ami  resulted  on 
the  1  ttli  of  January,  18(J!>,  in  the  Treaty  known  as  the  »Jo^-i- 
soii-Ularendou  convention. 

(//)  Tiiis  latter  convention  provided  for  the  organization  of  a  mixed 
coinini.ssion  with, jurisdiction  over  "all  claims  on  the  part  of  citizt^ns  ol" 
the  I'liited  States  upon  the  CTOvernment  of  Her  Jiritannic  Majesty. 
including  the  so-called  Alabama  claims,  and  .all  claims  on  the  i)art  of 
subjects  of  Her  Britannic  ^Majesty  upon  the  Government  of  the  United 
States  which  may  have  been  presented  to  either  Government  for  its 
interposition  with  the  other  since  the  -Gth  July,  18.k),  and  which  yet 
loiuain  unsettled."  ^ 

Lord  Granville  subsequently  said,  in  the  House  of  Lords,  of  these  two 
conventions,  "the  former  convention  provided  (Article  IV) 
tliat  the  Commissioners  shall  have  the  power  to  adjudicate  >\<nZ  hl^ZJ\!u- 
iipoii  the  class  of  claims  referred  to  in  the  official  corre-  Ir.'i'rext'.'^lir'oi'AiT 
i^pondence  between  the  two  Governments  as  the  Alabama 


Til.-  .Tohh.'iin-Cl  1 


Mr.  Seward  to  Mr.  Adams,  Feb.  14,  18(50,  vol.  iii,  Am.  App.,  p.  6'i8.    •''  Ibid.,  p.  fi.V,'. 


Ai 


App.,  vol.  iii,  ]>p.  GiW-G:?*). 
13  c 


^i 


- 

3      'N 


0 


u 


^  Am.  App.  vol.  iii,  pp.  752,  75:'.. 


104 


AR(il'Mi:N'T    OF    TIIK    I'M  IKI)    STATKS. 


MP' 


•'laims.  TJie  latter  (AitlcU^  1)  i)rovi«l('«l  that  all  (jlaiins  on  tlio  jiart  of 
subjects  of  Ui'V  liritaiinic  Ma,j*^sty  upon  tlu^  (lovtMiiiinMit  of  tlu^  riiilcd 
States,  aii«l  all  claiiiiH  on  the  )>art  ot  tlio  citi/uns  of  tlie  United  Statts 
upon  the  (iov(>rnnient  of  Her  Jiritannic  ^^aie8t,v,  including'  the  .so called 
Alabama  claims,  shall  be  referred  to  commissioners,  «S:c.  llotli  eonvcn- 
tions  purposely  avoided  detininj;  what  (constituted  the  Alal)ama  (daiins, 
and  admitted  abnost  uidimited  ar;riiiiu>ntas  to  what  the  Alabama  elaiins 
were.  IJoth  eonventions  were  also  open  to  the  objeetion  (at  that  time 
unavoidable)  that  there  was  no  cheek  on  the  award  of  the  tlinU  Arbitni 
tor,  who  mijiht  have  fjiven  damages  to  any  anu)unt."' 

It  is  clear,  therefore,  that  up  to  the  conclusion  of  the  .lolinson 
Clarendon  treaty  in  .Fanuary,  18<»!>,  there  was  no  doubt  in  l^njiland  tlmt 
the  term  "Alabama  claims"  was  understood  as  incliulinj«'  the  claims  loi 
the  natioiml  injuries. 

(/)  It  was  supposed  in  Anu'rica  that  it  was  not  stated  in  sullicieiitly 
unequivocal  terms  in  the  .lohnson-Clarendon  Tieatv  tliat  tln' 

rill' cniivi'iil  inn  licit  .  ,         ,.  ,  III  •!  11  .1  4i'ii 

"•"I'tuM-  tn  the  natuuial  claims  should  be;  considered  by  the  Arbitrat(»is; 
and  there  were  many  sij^ns  that  the  Treaty,  in  (;onse(|iu'iiee 
of  that  belief,  would  not  receive  the  assent  of  the  Senate.  Mr.  lies crdv 
.lohnson,  heariu};'  of  this,  wrote  an  elaborate  defense  of  himself,  whicii 
has  been  seized  ui)on  by  Her  ^Majesty's  (Jovernment  as  luoof  that  tli( 
LTnited  States  had  at  no  time  claimed  to  receive  indemnity  for  tlie 
national  injuries  which  they  have  siilfered.  Hut  the  foreft«>inji'  n'suuK 
of  correspomlence  between  the  two  (lovernments  shows  that,  if  .Mr, 
Johnson  made  such  a  statenuuit,  he  did  it  uiuler  a  misapprehension. 
The  error  was  never  communicated  to  Iler  Majesty's  (iovcni 
ment.  On  the  contrary,  only  a  few  days  later  he  wrote  te 
Lord  Clarendon  in  exactly  the  o[>posite  sense.  He  said. 
referrinj;:  to  a  claims  convention  between  the  two(Joveiii 
nients  in  18o3,  "At  that  time  neither  (lovernment,  as  such,  made  ;i 
tlemand  upon  the  other;  but  that,  as  my  proi)osition  assumes,  is  not  tlie 
case  now.  The  Government  of  the  United  States  believes  that  it  has  in 
its  own  right  a  claim  upon  the  Government  of  Great  Britain."^ 

(./)  ller  Majesty's  Government  also  received  the  same  intelliyeiRc 
about  that  time  from  other  sources. 

Its  Minister  at  Washington,  on  the  2d  of  February,  1800,  cominuiii 
cated  to  it  the  action  of  the  Senate  Committee  on  Foreign  Kelatioiis. 
"  Mr.  Sumner,"  lie  said,  "  brought  forward  the  above-mentioned  coiivon 
tion,  and  after  making  a  short  comment  upon  its  contents,  and  statinj; 
that  it  covered  none  of  the  principles  for  which  the  United  Stat(^s  had 
always  contended,  recommended  that  the  committee  should  advi.se  the 
Senate  to  refuse  their  sanction  to  its  ratitication.  Mr.  Sumner  ^va^ 
authdtized  to  report  in  that  sense  to  the  Senate."-'  On  the  l!>th  oi 
Sir  K.i«„r,i Thorn  April  Mr.  Thomtoii  also  advised  Lord  Clarendon  of  the  iv 
n"r.'i'r';i„'t  ",Ve  jection  of  the  Treaty.  "  Your  Lordship  perceives,"  he  saiil 
;?rb'''r"s;r  ,7  ",',  "  that  the  sum  of  i\Ir.  Sumner's  assertion  is  that  England 
^"'''"iHmie'.ile  t'lT-  *  *  *  Is  respoiisiblc  for  the  property  destroyed  by  tlie 
r.,t daim».  Alabama  and  other  Confederate  cruisers,  and  even  for  tin 

remote  damage  to  American  ship[)ing  interests,  including  the  increase  in 
the  rate  of  insurance  ;  that  the  Confederates  were  so  much  assisted  h\ 
being  able  to  get  arms  and  ammunition  from  England,  and  so  iiiiuli 
encouraged  by  the  (Queen's  Proclamation,  that  the  war  lasted  uuhI! 
longer  than  it  would  otherwise  have  done,  and  that  we  ought  therotbre 
to  i)ay  imaginary  additional  expenses  impo.sed  upon  the  United  Static 
by  the  prolongation  of  the  war."^ 


^Ir.  .Tnlm-'nii  i  n  - 
loriiiit  {.(It'll  rlirt'ii- 
<inn  that  lb*-  I'nited 
States  liuvc  churns  ol 
tlii'ir  iiwn  on  (treat 
llritaiii 


l-WiMi 


'  Hansard,  ubi  mtprn. 
'Am.  App.,  vol.  iii,  p.  780. 


»Ibi(l.,  p.  772. 
<  Ibid.,  p.  784. 


XATIKK    AM)    AMOI  NT    OF    DAMAfiKS. 


Ill') 


(A.)  This  may  bo  ciilU'd  the  oinl  of  tlio  mccoikI  stiij;*'  (»f  the  history  ol' 
the  iic^'otiatioiis.  It  coiniiu'iici'd  with  an  iiitiiiiiitioii  tVoiii  (rioat  Itiitain 
that  a  proposal  Iroiii  the  Uiiitt'<l  States  wouhl  ho,  listened  to.  In  its 
progress  nejjfotiations  were  opiMieU,  which  ended  in  a  convention  provid- 
ing' lor  the  snlnnission  of  claims  of  citizens  of  the  United  States  aj^ainst 
(Ireat  ISritain,  inclndin^  the  Alabama  (;laims.  This  conv<>ntion,  in  the 
itpinion  of  Jiord  (iranville,  admitted  unlimited  ar<{nm«>nt  as  to  what  the 
Alabama  t'laims  were.  Tin?  Treaty  was  rejected  by  tin- Senate  of  the 
I'liited  Stat«'s,  because,  althouj^h  it  nuule  jirovision  for  the  pait  of  the 
Alaiiaina  claims  which  consist4'd  of  claims  for  individual  losses,  the 
provision  for  the  nuire  extensiv<'  national  losses  w;'s  not  satisfiu't(ny  to 
the  S«Miate.  It  is  clear  that,  by  this  tinu',  if  not  before,  the  pliiase 
••Alabaiiui  claims"  was  understo«>d  on  both  sides  as  repr«'sentin;^' all  the 
rliiimsuj>ainst  (Jreat  Britain,  "j;rowinj;'  out  of"  its  conduct  towai'd  the 
I'liited  States  during  the  insurrection.  A  j)ortion  of  these,  claims  had 
!u'eii,throuj;hoiit the  discussions  by  Mr.  St' ward  and  ."Mr.  Adams,  j>i<uinded 
(III  the  unnecessary  J'roclamation  recoH'iiizinjj  the  iiisur;4«'ntsas  bellifi'cr- 
ciits.  The  remaimler  rested  on  the  acts  of  the  cruisers.  All  w«'re  alike 
known  as  Alabama  claims. 

At  this  staye  of  the  histcuy,  (leiuMal  (Irant  becaiiu^  President. 

On  the  l."»th  of  May  following'  Mr.  Fish  instructed  .Mr.  Motley  to  say 
ro  bord  ('larendon  that  the  Tiiited  States  in  rejecting;  the 
Trcatv  ''al)andone«l  neither //.v  «<r/t  claims  northo.se  of  its  i-nVrhmiMiim'tV,'' 


t^fl 


riti:cns:'^    Aj;ain,  on  the  LTith  of  the  following'  Septend>er,  I,'.'t  i.iMl.'i'.u'il.' 
.Mr.  Motley  was  instructed  by  M 


orijil  rliiiru-'. 


An.l  thn)  ll.i' .(oliii- 
ii-('l:iri'iiil(j)i  niii- 
ll.lliot»ll.i>.l 


Fish  in  a  dispiitch,  of 
which  a  copy  was  to  be  given  to  Lord  Clarendon,  to  say  that  the  I'resi- 
(lent  concurred  with  the  Senate  in  disa])proving  the  convention  which 
had  been  rejec^ted  ;  that  "  he  thought  the  provisions  of  that 
ronvention  were  iimdetpuite  to  i>rovi«le  rej)..  j'Uoii  for  the 
L'liited  States,  in  the  nuiniuT  and  to  the  degree  to  which  lie  ^umV.-ntn'^'i^^^^^^^^ 
considered  the  United  States  were  entitled  to  redress;"  but  """'"*'  '""'"" 
that  "  lie  was  not  prepared  to  pronounce  on  the  <juestion  of  the  indem- 
nities which  he  thought  due  to  individual  citizens  Ox  the  United  States 
'  *  *  uor  of  the  reparation  which  he  thought  due  by  the  Jiritish 
(ioveniment  for  the  larger  account  of  the  vast  national  injuries  it  had 
iiitlicted  on  the  United  States."^ 

Jn  an  elaborate  paper  styled  "  Observations*'  upon  Mr.  Fish's  dispatch 
to  ]\lr.  Motley,  of  the  2oth  of  September,  1801),  which  was 
itl)i)emled  to  Lord  Clarendon's  dispatches  of  November  0,  a«\'o,'"l,l,-TV!i  "i"'v 
ISOI),  to  Sir  Edward  Thornton,  the  subject  of  the  national, 
now  called  indirect,  claims  was  fully  considered  in  a  way  Avhich  must 
satisfy  the  Arbitrators  that  the  British  Covernment  understood  the  na- 
ture, character,  and  extent  of  those  claims.  It  is  dillicult  when  reading 
those  observations,  and  the  dispatch  which  called  them  out,  to  under- 
stand how  Lord  Granville  could  commit  himself  to  the  statement,  in  one 
i>t'  his  recent  dispatches,  that  "  There  teas  not  a  word  in  any  letter  pre- 
n-iVuHj  the  Treaty*')  snfiyest  any  indirect  or  constructi  re  claims  ;  and  the 
"nJy  intimation  the  British  Gorernment  had  had  was  from  the  speech  of  Mr. 
>^umncr.''-^ 

It  seems  to  us  that  these  incidents  are  decisive  of  the  whole  contro- 
versy. 

(/)  In  the  following  December  the  President  thus  alluded  to  the  sub- 
net in  his  annual  message  to  Congress  : 


Am.  App.,  vol.  vi,  p.  1. 

AppeiuUx  to  Liitisli  Case,  v<   ,  iv,  No.  1,  p.  ID. 


-  Ibid.,  p.  13. 


i 

u 


196 


AKOIMKXT    OF   TlIK    I'XITKD    8TATi:S. 


In  .liimiirv.  H7I. 
llif  wortis  Al;tl>;tn(ii 
rl;imi:*  WHri'  illiilt'i- 
>lui<cl  to  iri.'hi.lr  ;ill 
rliiitils  nr  111)-  I'liitfil 
Sliili".  im.iili-'t  (in-it 
llnl:iin.lMith  li:ilinii;il 
tuiii  illlti^  i'l'lld. 


'J'lic   provisions  [of  the  Tiraty]  wore  wliolly  iiiiuleciiiat*'  for  the  sctthMiicnt  of  tlic 
^rave  \vroii;;s  that  havt;  iM-en  Mii.staiiiotl  by  this  Cjiovorniiiciit  as  well  ns 
i'iiv.,.i.Mts  II,.-     by  its  citi/i'us.     The  injuries  rcsnltiiij;'  to  the  Unit(!(l  States  by  reason  of 
I'l'.' •ii.'i.'.'r.V^'iii,''' ■   the  conrsi^  a«h)pte(l  by  (ireat  Hritain  dnriii};  our  late  civil  war;  in  the 
increased  rates  of  insurance,  in  tlic  diininntion  of  exports  and  iinp()it>. 
and  other  obstruct  ions  to  domestic  industry  and  ]iroduction  ;  in  its  etfects  njion  tin- 
foreif^n  coniinerce  of  the  country  ;  in  tlie  decn^ase  of  tins  transfer  to  Great  IJritaiii  nt 
oiir  coniiiRrcial  niaiiiu; ;  in  t)ie  ]>r()h>nj;ati()ii  of  the  war;  and  the  increased  c()st(hotli 
in  treasure  and  lives)  of  its  siipiiression  ;  could  not  be  adjusted  and  satislied  as  ordi- 
nary coniniercial  claims  which  contiiinally  arise  bi^t  ween  commercial  nations.    And  yet 
the  eonventicui  ticated  them  simjily  as  such  ordinary  claims,  tVom  which  they  dilVer  iiiort- 
widely  in  the  f;ra\ity  ol"  their  cliaracter  than  in  tin;  ma!4nitu<le  of  their  amount,  i^iiai 
as  is  tliJit  (lilterence. 

Aj»(1  still  jipuii,  in  liis  niinual  message  toC.'onj^ress  in  Doconibcr,  1870, 
tlie  l*residcMit  lofcried  to  the  siiliject  with  siiiiihir  i)ircisioii 
and  paitieuhnity  of  statement,  as  cited  in  a  previons  part  of 
the  present  Aignnient. ' 

It  cannot,  tlierel'ore,  be  donbted  that,  in  the  bej^inninj-'  of  the  your 
1871,  it  was  well  nnderstood  by  both  (loveiiunents  that  tlic 
United  States  maintained  that  Her  3IaJesty's  Governiiu'iit 
on^ht,  nnder  the  laws  of  nations,  to  make  jjood  to  them  tlic 
losses  which  they  had  snffered  by  reason  of  the  a<'ts  of  all 
thecrnisers,  tyi>ically  rei)resented  by  the  Alabama — whetlici 
those  losses  were  cansed  by  the  destrnction  of  vessels  and  their  car 
goes;  by  the  prolongation  of  the  war;  by  the  transfer  of  the  commerce 
of  the  United  States  to  the  Ib-itish  Hag;  by  the  increased  rates  of  insur- 
ance during  the  war  :  by  the  expense  of  the  i>nrsnit  of  the  cruisers  ;  oi 
by  any  other  of  the  causes  einimerated  in  tiie  President's  message  to 
Congress  in  18()!>.  Xor  can  it  be  donbted  that  they  intended  to  reserve 
the  right  to  maintain  the  justice  of  all  these  claims  when  opi)ortaiiity 
should  offer,  nor  that  they  regarded  all  these  several  classes  of  losses 
as  eml>raced  within  the  terms  of  the  general  generic  phrase  "Alabama 
claims."  It  is  also  equally  clear  that  the  claims  for  coini)ensatioii 
founded  upon  the  (Queen's  rroclamation  were  abandoned  by  rresideiii 
(irant. 

{m)  At  that  tinie,  the  condition  of  l'Uir(»i)e  induced  Her  Majesty "s. Aliii- 
N.„„.i. 11. ..IS „,.,.„  isters  to  consider  the  (H)ndition  of  the  foreign  relations  ol 
t,i  It  w  i,-ii..,«.M,.  ^]^^,  Einpiro.  They  found  that  their  relations  with  the  Unitcil 
States  were  n()t  such  as  they  woidd  desire  to  have  them;  and  they  in- 
dni'cd  a  gentleman,  who  enjoyed  the  confidence  of  botli  Cabinets,  to 
visit  AVashingtoii  for  the  ])urpose,  in  a  conli<lential  inijuiry,  of  deter- 
mining  whether  thosc^  relations  conld  be  improved.^ 

(h)  It  was  not  the  first  time  that  Great  liritain  had  liad 


diH'ftl  till 
tir.ri-*. 


which  in- 
'f  nt"«iiti:i- 


cause  soli(;itously  to  ask  herself  whether  she  might  not  liavi 
need  of  the  gooti  will  of  the  United  States. 
At  the  opening  of  the  war  between  rrance  and  (Jreat  Britain  on  tin 
one  hand,  and  llussia  on  the  other,  the  Emperor  Napoleon  found  liiia 
self  greatly  embarrassed  by  li^ngland's  traditional  attitude  of  exigency 
toward  neutrals,  so  contrary-  to  the  traditional  policy  of  France.  Tlii' 
Foreign  JMinister,  M.  Drouyn  de  Lhuys,  labored  in  correspondence  with 
the  British  Government  to  induce  the  latter  to  relinquish  her  own  policy 
and  accept  that  of  France.  To  effect  this  object,  the  great  lever  eiii 
l)loyed  by  M.  Drouyn  de  Lhuys  was  the  ajiprehension  entertained  in 
Great  Britain  of  the  i)ossible  attitude  of  the  United  States.  He  explains 
the  matter  as  follows : 

Co  qui  touchait  particulieremont  le  j>ouvcrucmcnt  anglais,  c'etait  la  craini,.)  iie  vnii 
rAnn^rique  indiucr  contro  nous  et  pretcr  a  uos  ennoniis  le  eouconrs  do  ses  hardis  \<'- 


'  Jh/p,  p.  Id. 


-Statcmcut  by  Lord  Granville,  Hansard,  vol.  ccVi, p.  184'i. 


NATURE   AND   AMOUNT   OF    DAMAGES. 


197 


lontaires.  La  population  maritime  des  f!tat8-Uiiis,  leiir  maiino  entreprenanto,  pou- 
vaieiit  foniiiir  a  la  Kiissio  los  dlomonts  (I'liiie  tlotto  do  corsaires,  qui,  attachos  a  son 
service  par  ilos  lottre.s  dt;  marqne,  et  couvrant  lea  mers  comnie  d'un  rcsean,  LarcMt;- 
ijiit'iit  et  poursnivraitnit  notro  couiMierce  jn,s<iuo  <lans  les  ])arage8  les  plus  recules, 
I'our  prev(!iiir  oo  danger,  le  cabinet  de  Londres  teuait  beanconp  it  se  eoncilier  les 
liouiies  dispositions  dn  jfonvernement  federal.  II  avait  convu  I'idec  de  Ini  proposer,  en 
nic'iiie  temps  ipi'an  <;ouvernement  iran(,"ais  tst  a  tons  lt!S  etats  maritimes,  la  conclusion 
(I'uii  arrangement,  ayant  ponr  but  la  suppression  do  la  course  ct  permettant  de  traitor 
loiiniie  ])irate  (luicoiKine.  en  temi)s  d(i  gma-re,  serait  tronve  muni  de  lettres  d(!  marfiiie. 
Co  i)r()jet,  (pii  tut  abandonne  dans  la  suite,  tcmoigno  do  l'in<|uii'tndo  I'l.ro'ivt'o  par  les 
.Vnijlals.' 

IIow  M.  Diouyii  (le  Lhuys  worked  on  this  state  of  mind  of  the  Biitisli 
(loverniiient  appears  by  the  followiiij^  extract  from  adispatcli  from  liim 
to  the  French  Minister  at  L()n«h)n,  M.  Walewski  : 

Les  Ktats-rnis  enlinsout  prrts,  Je  nesaurais  en  douter,  a  revendi(|iier  le  n'lle  que  imus 
I'.i'iliiierions  et  a  so  tairi!  les  ])rot(!eteurs  des  ncMitres,  (|ui  tMix-nirnn'S  reeherelient  leur 
aiipiii.  I^e  ealiiut't  de  Wasbington  nous  propose  en  ce  nu)ment  de  >  igner  un  traiti^ 
iraiiiitie,  de  navigation  et  do  eommeree,  (/fi  i!  a  insert'  uno  st'»rio  d'arvicles  destines  a 
iiliiiiiifr  avec  unir  antorite  uouvelle  les  prineipes  (|u'il  a  tonjonrs  sontenus  et  qui  no 
(lilVii'ent  pas  des  nulres.  Le  priiieiiial  scei't-taire  d'eti.t  de  sa  Ma.jestt'  britauui<\ue  coni- 
iiit'iidra  f|Uenous  n'aurionsaneun  nioycii  do  lie  i)asi't'pt)ii(lre  lavoralilemeuta  rouvcrturo 
.;ni  nous  est  faite,  si  la  France  et  rAiijileterre,  bieu  que  stf  trouvant  engagees  dans  uno 
iiiriiic  eutrc]irise,  atlieliaicut  ]iublii|UenH'nt  des  doctrines  oi)i)osoes.  (^ue  les  deux 
:;iiuvtM'neineuts,  an  eoutraire,  s'eutendcnt  sur  les  ti  riues  d'uiio  declaration  cDuinmni',  et 
:;iiiis  ]iouvons  alius  ajouriu'r  rcxanien  des  projiosit'cuis  des  Ktats-Unis.  I!  uii.'  parait 
.lifliiilc  (|ue  ecs  considt'raticms  lu'  f'ra]>peut  p;is  I'esprit  d(.'  Lord  Clarendon. - 

Tliese  and  like  representations  on  the  part  of  M.  Dronyn  de  Lluiys. 
iiuluced  (ireat  Uritain  to  come  to  an  arranj^ement  with  J'rance. 

(<))  Not  insensible  to  such  motives,  Lord  Granville,  pendino'  the  late 
war  betwe<'n  France  and  (Jermany,  dispatched  a  contidential  agent  to 
Aiiiciica  to  re-open  negotiations  with  the  L'nited  States. 

Tiiis  gentlenum  arrived  in  Washington  early  in  January,  1S71.  and 
found  the  Government  of  the  United  States  so  d"  posed  to 
moot  the  advances  of  Her  ^Majesty's  government  that,  b'ifore  ■^,\''\n"i^''n,!^I^Z'- 
the  end  of  the  month,  Sir  Fdward  Thorton  was  able  to  i)ro- 
posc  to  ]\Ir.  Fish  "  tlie  appointment  of  a  Joint  High  Commission"  to 
"troat  of  and  discuss  the  mode  of  settling  the  dilVcrent  questions  which 
have  arisen  out  of  the  Hsheries,"'  »S:c. ' 

^Ir.  Fish  replied,  accepting  the  proposition  upon  condition  that  •'  the 
ilitVerences  which  prose  during  the  Kebellion  in  the  United  ,„,„,,„ 

States,  and  which  have  existed  since  then,  growing  out  of      '  "'  ""~   """ 
the  acts  committed    by   the   several    vessels  wliich  have 
;:iven  rise  to  the  claims  generically  known  as  the  'Alabama  claims,' "' 
should  also  be  "treated  of  by  the  i)ropose(l  Joint  High  Commissi>>n."^ 

Sir  Fdward  Thornton,  on  the  Lst  of  February,  answered  that  "  it 
Would  give  Her  ]M.iJesty's  Government  great  satisfaction  if  the  claims 
weic  subnntted  to  the  consideration  of  tite  sami^  High  Commission."' 

The  I'lesident  of  the  United  States,  undel'  the  provisions  of  the  Con- 
i^titution,  nominated  to  the  Senate   for  its  approval   hve 
t'onimissioners  to  serve  in  the  Joint  High  Commission  on  the 
part  of  the  United  States,  and  transniitte«l  to  the  Senate 
the  corresi)ondence  between   i\Ir.   Fish   and    Sir   Edward 
Thornton,  to  explain  the  proposed  duties  of  the  nominees, 
t'xplaiiation  the  Senate  gave  its  assent  to  the  several  appointmcTits ; 
and  thereupon  the  appointees  each  received  ii  commission  authorizing 
him  "  to  treat  and  discuss  the  mode  of  settlement  of  the  ditferent  ques- 


riiiliMlSt:it.-r..iii- 

itii.l  ((nitin 1  ')ii  till- 

.•,.rii-i>..N.I<n...,    :ui.l 


U[>on  this 


'brouyn  de  LIiuvs,  Les  ncutres  pettdani  In  (/iit/vc  d'Orkiit,  p.  14. 
'  Iliid.,  p.  2S. 
Hrit.  App.,  vol.  iv,  paper  ii,  p.  I. 


*  I\>id. 
■Ibid.,  p.  :t. 


f"         4,_ 


198 


ARGUMENT    OF    THE    UNITED    STATES. 


V  i 


*i: 


tioiis  which  shttll  come  before  the  said  Joint  High  Coumiission."'  The 
British  Comniissioiiers  received  a  broader  power,  which  was  stated  to  1  it- 
conferred  npon  them  "for  the  purpose  of  discussing  in  a  friendly  spirit" 
"the  various  dittcrences  whicli  have  arisen"  between  Great  Britain  and 
the  United  States,  "and  of  treating  for  an  agreement  as  to  the  mode  ui 
their  amicaWe  setthMueut." 

Taking  these  powers  and  the  correspondence  between  ]\rr.  Fish  uiid 
Sir  Edward  Thornton  together,  it  is  evident  that  each  Government  con 
temphited  that  all  the  differences  between  the  two  Governments  within 
tlie  jange  of  the  correspondence  were  to  be  discussed  with  a  view  to 
reaching  a  mode  of  settlement. 

Among  the  Commissioners  named  on  the  i)art  of  the  United  Stato 
was  ^Ir.  Fish,  the  Secretary  of  State,  one  of  the  j)arties  to  the  preliini 
nary  correspondence  which  led  to  the  Treaty;  and  among  those  on  the 
part  of  Great  Britain  was  Sir  Edward  Thornton,  the  other  i)arty  to  that 
corresi>ondence. 

[p)  The  subject  of  the  Alabama  claims  was  opened  at  the  fourth  con 
ference  by  an  elaborate  statement  from  the  American 
commissioners.- 

They  stated  that  "in  conse(|uem;e  of  the  course  and  conduct  ot 
Great  Britain  during  the  Kebellion"  the  United  States  had 
sustained  a  great  wrong,  and  had  also  suffered  "  great  losses 


Til '  AiJiprirau  mm- 
niisPi.-iu''  r  H     H  t  ;t  t  » 

''''■'t),p'''m.''m;Ml;'''''i  and  injuries  upon  their  material  interests."    Thus,  in  the 


ti 


a,. 


outset,  they  drew  a  distinction  between  certain  political  dit 
ferences  which  had  been  the  subject  of  some  correspondence  between 
the  two  Governments,  and  the  material  losses  and  injuries  whicli  could 
be  estimated  and  indemnified  by  i)ecuuiary  compensation.  They  then 
went  on  to  state  their  views  more  in  detail  as  to  such  losses  and 
injuries. 

1-11  order  to  bring  them  within  the  letterof  the  correspondence,  and  tc 
define  their  understanding  of  the  meaning  of  the  language  there  used 
by  Mr.  Fish  and  by  Sir  Edward  Thornton,  they  began  by  tracing  thesf 
losses  and  injuries  to  the  Alabama  and  the  other  err  ^ers.  They  said  thai 
"the  history  of  the  Alabama  and  other  cruisers  which  had  been  fitted 
out,  or  armed,  or  ecpiipped,  or  which  had  received  augmentation  of  font 
in  Great  Britain,  or  in  her  'colonies,'  showed  the  losses  and  injuries  toi 
which  they  are  claiming  indemnification." 

They  then  said  that  the  damage  which  they  had  suffered  from  these 
injuries  was  two-fold  :  1st.  That  which  had  proximately  resulted  from 
the  acts  of  the  cruisers,  "  the  cajiture  and  destruction  of  a  large  munhei 
of  vessels  with  their  eargoes,"  and  "  the  heavy  ex])enditures  in  tlit 
pursuit  01  the  cruisers ;"  .md  2d,  other  injuries  resulting  less  directlv , 
though  not  less  certainly — namely,  "the  transfer  of  a  large  part  of  tin 
Ameri(;an  <;ominercial  marirte  to  the  British  flag,"  "  the  enhanced  pay 
ments  of  insurance,"  "the  prolongation  of  the  war,"  "and  the  addition 
of  a  large  sum  to  the  cost  of  the  war,  and  the  sni>pression  of  thi 
rebellion." 

Thus  J\Ir.  Fish,  one  of  the  parties  to  the  jneiiminary  correspondcnn'. 
and  ills  colleagues,  exi)lained  to  Sir  Edward  Thornton,  the  other  party 
to  the  corresi)oiHlence,  and  to  his  colleagues,  that  the  history  of  tin 
cruisers  showed  all  these  losses  and  injuries;  in  other  words,  that  the) 
all  grew  out  of  the  acts  of  those  cruisers. 

The  American  Commissioners  next  expressed  their  conviction  tlnit 
the  history  of  the  cruisers  showed  "  that  Great  liritain,  by  reason  ni 
failure  in  the  proper  performance  of  her  duties  as  a  neutral,  had  bocoim 
justly  liable  for  the  acts  of  those  cruisers  and  of  their  tenders." 

'  Brit.  App.,  vol.  iv,  \n\i)vv  xii,  p.  (i.  -'  Ibid.,  p.  *• 


NATURE    AND    AMOUNT    OF    DAMAGES. 


loy 


iticMh*  (it'  iiM'i'rtitiiiitu 
till'  iiiimnut  i)t  llif 
(liiin.'ifjt't. 


Tlioy  tli(Mi  turnod  to  tho  consideration  of  the  damage  which  the 
riiite<l  States  liad  snttere<l  from  this  chiss  of  injnries.  They 
stated  the  amonnt  of  the  chums  for  the  destruction  of  private 
property  which  had  up  to  that  time  been  ])resented.  They 
indicated  a  manner  in  which  the  amount  (d"  the  expenses  for  the  pur- 
suit of  the  cruisers  could  be  ascertained.  They  added  that  they  had 
not  yet  made  an  estimate  of  tiie  other  dama}»'es  less  ju-oximately  result- 
iii;^' from  the  injuries  complained  of,  because  they  "  hoped  for  an  ami- 
ciilde  settlenuMit."  Tliis,  however,  was  not  to  prejudice  them  "  in  the 
event  of  no  sucli  settlemeni  beinj;"  made."  They  thus  distinctly  «leclared 
tliiit  these  cliisses  of  injuries  also  were  cai»!ible  of  beinj;'  estimated  and 
)»eonniarily  indemnified ;  and  they  reserved  the  right  to  claim  such  in- 
demnity. 

Tlu\v  closed  their  elaborate  statement  by  ]>roi)osing  that  the  desired 
amicable  settlement  should  be  made  witiiiu  the  walls  of  the 
room  in  which  the  conference  was  held,  by  means  of  an  ttPnui'^h^MlVa'T- 
ajjreement 'Mipon  a  sum  which  should  be  i)aid  by  (Ireat 
Britain  to  the  United  States  in  satisfaction  of  all  the  claims  and  int»  i- 
est  thereon.'' 

Such  an  arrangement,  in  connection  with  the  other  provisions  of  the 
Treaty,  would  iiuieed  have  constituted  a  settlement,  and  an 
amicable  ime.  It  would  have  been  a  settlement,  because,  ^. "'!n. ""',"■  ihi.^. 
lieiiig  a  discharge  of  the  obligation,  it  would  have  ended  all 
controversy.  It  is  not  an  amicable  settlement,  it  is  not  in  any  sense 
a  settlement,  to  engage  in  a  protracted  lawsuit,  as  the  two  (lovern- 
iiients  have  been  constrained  to  do,  in  consequence  of  the  liritish 
(iovernment  refusing  to  enter  into  the  amicable  arrangement  j)roposed 
by  the  United  States. 

It  has  been  asserted  that  this  proposal  was  a  "  waiver"  of  the  claims 
classed  as  "  indirect."  So  far  from  that  being  the  case,  the 
luoposal  contemidated  that  the  iiayment  of  a  gross  sum 
was  to  be  made  and  accepted  as  a  ^'- satisfaction  of  all  the  cl((im.sy  Such 
a  payment  and  such  an  application  of  the  payment  are  utterly  incon- 
sistent with  the  idea  of  a  waiver  of  any  of  the  claims. 

The  attitude  of  Mr.  Fish  on  this  occasion,  and  of  the  other  American 
Commissioners,  was  in  perfect  actcord  with  the  constant  previous  atti- 
tude of  the  American  (Iovernment,  as  explained  by  Mr.  Seward  in  his 
dis|);itch  to  Mr.  Adams  of  January  lo,  18(J8.i 

Lord  Htiuiloy  seems  to  have  icsolved  tliat  the  so-called  Aliihaiiiii  claims  shall  be 
tn  iitL'd  so  exclusively  as  a  pecuniary  commercial  claim  as  to  insist  on  alto;fetIi<!r  ex- 
1  liidinjj  the  i>rocee<Ungs  of  Her  Majesty's  (iovernment  in  rcfjard  to  the  war  from  con- 
siiirnuiori  in  the  Arbitration  which  he  proposed.  On  the  other  hand,  I  have  been  sin- 
niilaily  unfortunate  in  my  correspondence  if  1  have  not  ffiven  it  to  be  clearly  nuder- 
>Um\  that  a  violation  of  neutrality  by  tiic  (Queen's  iiroclanuiti()n,  ami  kindred  proceed- 
ings of  the  Ibitish  j{">^ciiinient,  is  rej^arded  as  a  national  wrong  and  injury  to  tiie 
liiited  States. 

The  British  commissioners  without  delay  declined  the  n,„  ,„,„„„„|  ,,. 
American  jtroposal  for  an  anncable  settlement.  '' ' 

Sir  Edward  Thornton,  the  other  party  to  the  preliminary  correspond- 
cMce,  ami  his  colleagues,  listened  witln)Ut  objection  to  ^Iv. 
Fish's  definition  of  tlie  sense  in  which  the  i>hrase  "Alabama 
claims"  had  been  used  in  that  c()rres[»ondence  ;  nor  did 
tliey  at  any  time  take  exception  to  it,  or  i)ropose  to  limit  it.  On  the 
contrary,  they  expressly  declined  to  reply  in  detail  to  the  statement  of 
tilt!  Ameiican  Commissioners. 


lint    nn    \vai\t'r    nl 
any    rl.1fcs  )»!'  elann- 


WitllOtit  excpptiini 
to  the  deliiiltioi)  III 
lilt'  tiTiii  •■Alubaiiri 
clainis. " 


'  Aiu.  App.,  vol.  iii,  p.  688. 


r"^ 


200 


ARGUMENT    OF   THE    INITEU    STATES. 


After  rejecting  the  "amicable  settlement,"  proposed  by  the  American 

Commissioners,  the  British  Commissioners  next  suggestod 

,  .Vhy"i".Lr.  irni'-'  the  substitution  of  a  litigious  "mode  of  settlement"  in  its 

place,  viz,  a  lawsuit  or  arbitration,  'tvlierein  all  liability  to 

the  United  States  for  the  injuries  complained  of  should  be  denied  and 

contested. 

The  American  Commissioners  regarded  this  as  a  very  ditt'erent  adjust- 
ment from  the  one  which  they  had  proposed.    They  uuwjl- 
rrpi?"'i..v'i'i'."L-..it".i  lingly,  and   under  conditions,   accepted   the  British   su<i- 
gestion  to  refer  to  Arbitrators  the  full  statement  of  injurii^s 
which  they  had  just  made,  and  which  the  British  Commissioners  had 
received  without  cavil. 

(f/)  After  a  discussion  of  several  weeks  the  Joint   ni<;ii 
Commissioners  agreed  u[)on  a  Treaty. 

The   preamble  of  this  instrument  recites  that  "the  United  Statos 

M«.i,iM«  o(   ;„Mi.  of  America  and  I ler  Britannic  Majcst3',  being  desirous  to 

'"''''"""'"""''     i>rovi(le  for  an  ami(!able  settlement  of  all  causes  of  dil'lei- 

ence  between  the  two  countries,  have  for  that  purpose  appointed  tlieir 

respective  plen!j)otentiaries." 

This  statement  is  re(;itative  and  historical,  and  must  be  taken  to  !)i.' 
strictly  true  in  the  sense  in  which  it  was  written. 

It  therefore  does  not  lie  in  the  mouth  of  either  party  to  tlu^  Tieaty  to 
deny  that  each  (lovernment,  in  apiwintiiig  its  Cominissionei\s,  desiivd 
to  provide  for  an  amicable  settlement  of  the  San  Juan  water  boundary, 
of  the  navigation  of  the  Saint  Lawienci*,  of  the  (.'anadian  fisheries, 
of  the  navigation  of  Lake  [Michigan,  of  the  use  of  the  navigable  rivers 
in  Alaska,  and  of  tln^  claims  of  British  subjects  for  losses  arising  out 
of  acts  committed  against  their  persons  or  tiieir  properti' s,  as  well  iis 
of  the  Alabama  claims. 

But  when  it  is  attempted  to  conline  the  wcn-ds  of  this  preamble  to  ;i 
single  one  of  the  subjects  grouped  in  the  Treaty,  and  to  transfer  tlic 
operation  of  its  language  froin  the  (lovernments  of  whom  the  aniriiiu- 
tions  are  made  to  subjects  disposed  of  in  the  treaty,  it  is  an  evident 
perversion  of  the  purpose  which  the  parties  Inul  in  view.  For  the  Tieaty 
itself  immediately  makes  it  clear  thit  the  parties  did  not  understand 
that  the  arragement  as  to  the  Alabama  claims  was  an  "  aniiealiK 
settlen)ent."' 

It  is  declared  that  the  agreements  in  thi-s  res])ect  are  made  in  order 
"  ^0  proridc  for  the  .sjwedij  setflcmt'iit  of'  such  chtlnis.''''  If  an  "amieabk' 
settlement"  of  these  claims  had  just  been  made,  it  is  not  to  be  supposed 
that  the  i)arties  would  enter  into  a  formal  agreement  for  their  "  speedy 
settlement"  in  the  future. 

The  means  for  reaching  this  speedy  settlenuMit  form  the  subject  of  tlie 

ri,„>n,r..rr.iw cuai^tiug  clausc  (d"  the  Treaty.     It  is  there  provided  "that 

'■"""""■'"*'"  all  the  said  claims  growing  out  of  the  acts  of  the  aforesaid 
vessels,  and  generically  known  as  the  'Alabama  claims,'  shall  he  re 
ferred  to  a  Tribunal  of  Arbitration." 

This  langiuige  is  nearly  identical  with  the  language  of  the  correspond- 
„i,„i,  ence  between  Mr.  Fish  and  Sir  Eclward  Thornton :  by  re- 
ferring to  what  has  i)receded  the  Arbitrators  will  see  that 
the  change  is  one  of  taste,  not  of  sense  ;  of  form,  not  of  sub- 
stance. 

We  look  in  vain  in  it  for  a  waiver  of  any  of  the  demands  made  by  Mr. 

N,  «ai -r  ui  ini,   I'^ish  at  thc  fourtli  conference.    If  the  parties,  after  snch 

...I  dan,,..  specific  notice,  had  intended  to  withdraw  from  the  scope  of  tlie 

Arbitration  any  of  those  demands,  or  to  provide  that  any  of  the  injuries 


Tl,.'    • 
wt  re    lU'.iT,  tj"ii 
l',-rl,,i,iri!,i'y    rorr 
I'limifDCf. 


NATURE    AND    AMOUNT    OF    DAMAGES. 


201 


li.lHI 


\  ;.n.-  1,1    M,-, 
ruu.i. 


to  the  United  States  growing  out  of  the  acts  of  the  cruisers  wore  no  ;  to 
be  considered  by  the  Arbitrators,  the  limitation  would  undoubtedly  have 
found  a  place  in  this  part  of  the  Treaty.  It  is  clear,  therefore,  that  there 
was  no  such  purpose. 

Having  provided  a  manner  for  giving  the  Tribunal  jurisdiction  over 
the  subject  of  the  reference,  the  Treaty  next  detines  tlie  extent  of  that 
jurisdiction. 

The  Arbitrators  are  to  determine,  1st,  whether  the  United  States 
liave  suttered  any  of  the  specilied  injuries,  that  is,  any  inju-  ,.,„.,.,,„,  „„.  i,,. 
lies  growing  out  of  the  acts  committed  by  the  cruisers  ;  I'd,  '"""'■ 
wliether  Clreat  Britain  is  liable  to  indemnify  the  United  States  for  any 
ftt'tliose  injuries,  and  if  so,  for  which  ones;  and,  3d,  it  is  provided  that, 
iiionsethe  Tribunal  linds  that  Great  liritain  has  failed  to  fulfill  any  duty 
01' duties  as  aforesai<l,  it  may,  if  it  thinks  proper,  proceed  to  award  a 
sum  in  gross  to  be  paid  by  Great  Britain  to  the  United  States  for  all  the 
claiins  refern^d  to  it;  but  it  is  nowhere  stated  or  intimate<lthat  in  rea<'li- 
iiig  that  gross  sum  Jiny  i)art  of  the  injuries  to  the  United  States  which 
iiiiiy  be  shown  to  grow  out  of  the  acts  of  the  cruisers  are  to 
he  or  may  be  disregarded  by  the  Arbitrators.  Mr.  ]\Iontague 
lleruard  in  his  lecture  on  the  Treaty  has  fairly  admitted  this,     lie  says : 

Till'  Treaty  of  Wasliini;t(in  is  carcifiilly  fVaiiU'd  to  i'mbraci>  only  siMH'ilic  claims,  such 
;is  liiul  int'vionsly  Ixn-oiiie  kiiowii  to  botli  (jo\(niniH'iils  niidcr  tlu'  iiainc 
111'  till-  "  Alahaiiia  claims,'"  for  losses  iiiul  ilamajjcs  caused  by  tlit?  acts  of 
rdtiiiu  vessels,  of  which  th(3  Alabama  was  the  tyjiieal  instance  ;  furtliiT, 
rlit!  losses  luiist  be  such  as  can  be  fairly  as('rii)e(l  to  some  failure  of  duty  on  the  ])ait  of 
Kn<;;land  ill  respect  of  these  vessels;  and  in  makiuf^an  award  each  vessel  is  to  \h'  taken 
-I'piu'ately.  Jlnl,  hciioiid  Ihin,  Ihc  Tirnt)!  dovx  not  (kjiiif,  hi/  crju'ifis  irnnh  of  limitation,  lltr 
iiulmr  of  the  losxcs  on  u'TOiinl  of  which  romiicnsalion  mai/  tw  on'nvthd,  nhontd  thv  Avttitrutovs 
iJimk  that  any  compenmlion  in  dnv.  On  thin  tinijtc  point  a  (liKai/inincnt  h((x  arisen  Iwltcriii 
ih' two  Gorernmcnl!^.^  , 

That  is  true;  the  Treaty  does  not  contain  any  express  words  of  limi- 
tation. Nor  does  it  contain  any  words  to  imply  or  suggest  limitation. 
On  the  contrary  the  words  are  unequivocally  and  explicitly  general,  not 
to  say  universal,  as  comjn-ehending  r^/i  claims  of  the  "si)ecitic"  class: 
tliat  is,  ''Alabama  claims."  The  assumption  that  there  is  such  limita- 
tion is  a  contradiction  of  the  express  language  and  the  plain  meaning 
of  the  Treaty. 

Jt  appears  from  all  this  that  the  Arljitrators  received  by  tl  '^  Treaty  full 
Jurisdiction  over  all  the  claims  presented  and  defined  by  the  An)eri(!an 
Coiuniissioners  at  the  opening  of  the  fourth  conference.    This  conclusion 

receives  a  signillcnnt  support  from  the  twelfth  article  <>f  the    tv,ii,i, .ri,. i 

Treaty.    That  article  provides  for  the  creation  of  another  and  ""  " '■ 

111!  iiidepenilent  Tribunal,  which  is  also  to  have  juridical  jtowers  for 
liiuliiig  injuries  and  awarding  damages.  The  claims  to  be  submitted  to 
■^ueh  Tribunal  are  defined  a)  be  "claims  on  the  part  of  corporations, 
'onipanies,  or  private  individuals,  citizens  of  the  United  States,  i'i)on 
tlie  (lovernment  of  Her  Britannic  Majesty,'' and  "claims  on  the  part 
t>f  corporations,  companies,  or  private  individuals,  subjects  of  Uer 
iiiitannic  Majesty,  upon  the  Government  of  the  United  States.''  Great 
tare  is  thus  taken  to  limit  the  jurisdiction  of  the  tribunal  created  by 
Article  XII  to  the  consideration  of  injuries  suffered  by  individuals, 
(onipanies,  or  corporations.  But  the  Tribunal  of  Arbitration  at  Geneva 
ii^  iuvested  by  the  terms  of  Article  I  with  the  jurisdiction  over  "  (ill  the 
ilnima  on  the  part  of  the  United  l^tates  growing  out  of  the  acts"  committed 
'•y  the  cruisers.  The  limitation  to  individual  claims  which  is  found  in 
the  twelfth  article,  is  not  found  in  the  first  article.    On  the  contrary 

■Lecture  on  the  Washington  Treaty,  May  28tli,  1872,  London  Times,  29th  May,  IS'i'i. 


■    M 


'  > 


■w^ 


202 


AHfil'MEXT    OF    THE    rXlTED    STATES. 


tbo  lan;'iia<»'o,  widens  out  with  the  evidout  purpose  of  enabliiii^'  the  court 
to  become  posse8se<l  of  complete  jiirisdi(!tion  of  the  case. 

{>•)  Four  of  the  Uve  British  Commissioners  have  made  public  stale 
lueiits  refjardiuf--  these  negotiations.     No  two  of  them  agree. 

Sir  Stafford  Northcote  for  instance  has  said,  that  "  the  Commissioners 

s,rs.„i„r.iN„rii,.  wcrc  (listiuctly  rcspousible   for   havi       represented  to  tiie 

Crovernment  that  they  understood  -.  juomise  to  be  given  that 

these  claims  were  not  to  be  put  forward,  and  were  iu)t  to  be  submitted 

to  Arbitration.'" 

lUit  Lord  Itipon  says: 

II  Her  Majesty's  CoiniiiissioiierH  liiul  hoeii  iiidiued  liy  any  such  nnder.staiiilinjf  to  cni- 
ploy   liinjruiijit'  wliicli    in  tlu-ir  Jiid^inient  admitted  these  claims,  tlii',\ 
'""'  ' ''  wonld  be  liable  to  just  and  stjveio  1)lame.- 

And  yet  Mr.  ]\[ontag-ue  IJernard  says,  as  if  in  apology  for  the  laii 
'        guage  of  tlie  Treaty: 

It  is  often  necessary  for  tlie  sake  of  a^^reiiment  to  accent  a  less  finished  or  (^ven  h•^^ 
accurate  expression  instead  of  a  mon;  finished  or  mon^  accurate  one,  and  which  must  ln' 
c(mstrued  lilfcrally  and  rcasonaldy,  accordinj^  to  wiiat  appears  to  be  the  true  intentii>!i 
of  the  contractiiiff  parties.' 

All  reasoning  from  recollections  and  understandings  ought  to   dis 
KvKi.n.,  I n.miro   appcariu  readiugtlie  protocol  of  the  second  conference  of 
"■'"' "  the  Joint  High  Commission,  where  it  is  stated  that  "  at  tlie 

commencement  of  the  conference  the  United  States  High  Commissioners 
called  attention  to  the  provision  in  the  Constitution  of  the  United  States. 
by  which  the  advice  and  consent  of  the  Senate  is  reciuired  for  the  ratili 
cation  of  any  Treaty  which  may  be  signed  under  the  authority  of  tlio 
President." 

It  ought  not  to  be  credited  that  Her  ^Majesty's  High  Commissioners, 
after  such  a  notice,  would  have  been  content  to  rely  upon  any  promise  ot 
the  American  Commissioners  to  protect  (Jreat  Britain  against  a  class  of 
claims  which,  without  such  promise,  were  ai)parently  included  in  the 
operative  words  of  the  Treaty  sent  to  the  Senate  for  its  constitutional 
action.  This  conclusion  is  stiengthened  by  the  fact  that  Lord  lii])oii. 
Sir  Stafford  Northcote,  and  Mv.  Montague  In^rnard  left  the  United 
States  before  the  Senate  had  acted  upon  the  Treaty,  and  had  no  oppor 
tunity  to  know  what  art'ected  the  action  of  that  body. 

They  proceeded  to  England.     Soon  after  their  arrival  there  the  Treaty 
oecanie  the  subjectof  discussion  in  each  House  of  Barlia 

ilclial.'  ill  I'liiliiiiinMil.  ,     I  " 

ment.^ 
Earl  (Iranville,  in  the  Hou.se  of  Lords,  madeasi)eech,iii  which  he  used 
expressions  which  have  since  been  much  commented  u])oii. 
He  said  that  "  the  pretensions''  adv:uiced  by  jNIr.  Fish  "ou 

'  I.ondoii  Times  May  "i^^,  1H72.  Sir  Stati'ord  Xortheote  ex[»lains  his  meanini;  in  a  iiDtr 
read  by  Lord  Derby  in  the  House  of  Lords,  and  printed  in  the  London  journals  of  tli< 
'.•th  ofJune,  1H7'2 : 

"It  has  been  supposed,  and  you  seem  to  have  sujiposed,  that  I  said  that  an  uiuli'i- 
standinj;-  existed  between  tlie  liritish  and  the  American  ne<^ittiators  that  the  claims  I'ni 
indirect  losses  should  not  be  Itroujfht  forward,  ami  it  bus  Iteen  inferred  from  this  that 
we,  relyiiifj;  upon  tiiat  understanding,  were  less  caretul  in  framing  the  Treaty  than  ^^■' 
should  otherwise  ha\'e  been. 

"That  is  incorrect.  What  I  said  was  that  we  had  rei»resented  to  our  GovernnnMU 
that  we  understood  a  promise  to  have  been  given  that  no  (daims  for  indirect  losst> 
should  be  brought  forward.  In  so  saying  I  reterred  to  the  statement  voluntiirily  sni'l 
formally  made  by  the  American  Commissioners  at  the  oi»eningof  the  conference  on  tlii 
r'th  March,  whicdi  I  tor  one  understood  to  amount  to  an  engagement  that  the  claiuii*  ii; 
•jneation  should  not  l»e  put  forward  in  the  event  of  a  Treaty  being  agreed  on." 

-  Jiondon  Times,  June  .'>,  1H72.  'London  Time  ,  «^  «Hy>n(. 

^  House  iif  Lords,  Hansard,  N.  S.,  vol.  20G. 


MUSdl 


XATIRE    AND    AMOUNT    OF    DAMAGKS. 


203 


tiivly  disappear  uikUt  tho  liinited  iH'fereiutMvliich  incliule.s  meroly  coni- 
plaint.s  arisiiij?  out  ol'  the  escape  of  the  Alalxinta.'"  Could  an.vtliiii<>'  lia\e 
lii'on  more  inaccurate  than  this  briei".  i  \t>ii  bald,  expression  ;'  Wt'  shall 
soon  notice  this  speech  further.  At  i)resent  it  is  si".lUcient  to  say  that 
Lord  (rranville  himself  probably  would  not  now  ontend  that  it  was  in 
any  sense  a  correct  statement  of  the  etfect  of  tin*  operative  (jlause  of  tin- 
lirst  article  of  the  treaty.  Lord  Cairns  immediately  challenyed  it.  Jle 
said : 

I  i|nit(.'  ('(mcnr  in  tlio  opinion  tliat,  inidcr  tlic  Ai'l)ifriitiiin  proitoscd  by  my  nolile 
Iriiiid.  tlif  lute  Foi'i'ijrn  Secretary,  iintl  Lord  (-'laivndoii,  it  wasiiuite  pos- 
mIiIi;  for  tlic  L'nitfd  fStatoH  to  liavf  madt-  cxtravajiant  claini.s.  IJiit  what  ,,pI,',;;i!,,liTm,"'m 
is  there  in  the  jiresent  Ti'eaty  to  prevent  the  same  tliinj^:'  I  cannot  tind  ciu.u.i  uui..' Hvnv 
(iiic  sinjile  wold  in  tiiese  jtrotocolHorin  these  Jinle.s  whieli  wonld  prevent 
>U(h  claims  hein;;  i»iit  in  and  takinj;-  their  chance,  and  nn(U'rthe  Treaty  proposed  l>y  my 
uiMv  frii'nd  they  conhl  do  more.  Then?  is  this  ditVeience  in  a  controversy  of  this  kind 
liitween  leavini?  all  unestions  optMi  to  an  Arbitrator  or  Arbitrators  in  whom  yon  have 
(oiilidence,  ami  in  referrini;- these  questions  to  these  arbitrators  with  certain  ent  and 
(liitii  ])ropositious  nnfavorable  to  yonr  views  of  the  case.  Snpjtose  I  charj^e  a  man 
witii  bnrnin<;  my  honse,  and  tell  him  that  I  hold  him  answerable  tor  all  the  damages 
tliiit  ensue  ;  and  he  said,  "  Von  have  no  jjower  whatever.  I  happened  to  be  ])as8in<{  at 
ilie  time,  and  1  saw  a  <freat  number  of  men  attackinj;-  yonr  house  and  burning  it.  It 
was  not  in  my  power  to  prevent  them  doing  it.  I  am  sorry  to  see  what  happened,  and 
I  will  refer  the  whole  question  to  Arbitration."  I  should  In;  <iuitc  willing  to  say,  I  am 
]ii'il'ectly  prepared  to  refer  the  <|m'stioii  to  Arbitiation  if  there  is  an  article  in  the  agree- 
iiicnt  providing  that  any])erson  ]»assing  by  while  other  i>ersons  were  setting  lire  to  my 
liiiiise,  and  did  not  stop  them,  is  answerable  for  all  tlie  civil  eouse(i"eiices  of  the  honse 
iui|iroperly  being  destroyed.  Of  course,  if  a  man  is  so  foolish  as  joiiseut  to  such  an 
iiiiaiigenient,  he  must  not  be  surprised  when  he  is  made  responsible  for  all  the  dani- 

These  remarks  of  Lord  Cairns  were  tlie  only  ones  made  during  that 
debate  which  can  aspire  to  be  regarded  as  a  criticism  upon 
the  operative  part  of  the  first  section  of  the  Treaty.  They 
were  full,  precise,  learned,  and  no^  open  to  doubt.  Lord  Jtipon,  who 
liad  negotiated  the  Treaty,  was  present  at  that  debate.  Lord  Granville, 
who  had  from  day  to  day,  through  the  Atlantic  cable,  instructed  Lord 
llipon  and  his  colleagues  in  the  course  of  the  negotiations,  was  also 
Iti'o.sent.  The  Duke  of  Argyll,  the  Lord  Chancellor,  and  Lord  Kimber- 
ley.  all  Cabinet  Ministers,  were  there.  Did  any  or  either  of  them  dissent 
tioiii  Jjord  Cairns's  opinions?  If  they  did,  tlie  official  records  of  the 
debates  do  not  show  it,  although  all  of  them  spoke  in  the  debate. 

80  far  as  the  views  of  Lord  Kipon  can  be  gathered  from  a  speech 
made  by  him  in  the  same  debate,  they  were  in  accord  with 
those  of  the  United  States.     He  said : 


Hi;*     cnnfttriictioii 


T.or.l  Kill. 


Now,  so  far  fnun  our  conduct  being  a  constant  course  of  concession,  theri^  wen;,  as 
my  noble  friend  behind  me  (Karl  (iianville)  has  said,  numerous  occasions  on  which  it 
"as  our  duty  to  say  that  the  proposals  made  to  us  wei'c  such  as  it  was  impossil)le  for 
lis  to  think  of  entertaining.  Nothing  can  be,  more  easy  than  to  take  the  course  adopted 
liy  my  noble  friend  opposite,  (the  Earl  of  Derby,)  and  to  say  that  all  the  demands  we 
iisistcd  wfie  so  jueposterous  that  it  wonld  have  been  absurd  to  entertain  them,  while 
tlidse  iqion  which  concession  was  imnh'  were  the  only  ones  really  in  disjmte.  My  noble 
tiiti  il  says  that  no  Arbitrator  would  have  entertained  a  claim  for  what  the;  Americans 
tiriii  our  premature  recognition  of  belligt.'reiit  rights  and  the  consequent  prolongation 
lit  tile  war.  That  may  b»^  true;  but  in  the  convention  to  which  my  nol)le  friend  ap- 
luiiilfd  his  name,  it  w  ould  have  been  open  to  the  Americans  to  adduce  arguments  on 
tliat  point. 

Is  'f  not  the  fair,  i.^  it  not  the  only  conclusion  to  be  derived  from  this 
liiii};uage,  that,  while  in  the  Treaty  the  United  States  abandoned  their 
''claims  for  the premuture  recognition  of  helUgerent  rights,  and  the  conse- 
'lucitt  prolongation  of  the  war,"  they  adhered  to  all  the  claims  growing 
out  of  the  acts  of  the  crni.sers  as  they  had  been  defined  in  the  protocol  ? 
t'qiresKto  unhis,  crclusio  alterhiN. 


M  'm,. 


;*Jb.'H8 


i  ^ 


Hut 


7^ 


204 


ARGUMENT   OF   THE    UNITED    STATES. 


")  i     I 


Ju  tlie  debate  in  the  Hoiiao  of  Commons,  on  the  4th  of  August,  Sir 
«,, s,„ii<,,.i  v  It:,  Stattord  Noithcote  spoke.     His  speech  was  reported  in  ihe 
"'"■  Times  of  tlie  next  day.    lie  said,  regarding  the  previous 

conventions : 

Tlicy  [tlio  riiitcd  States]  iiiiirlit  liavt;  nii.stid  ((lusMtions  with  ri'^fiml  to  wlwit  tlicy 
callt'd  Eii^lan<r.s  prvmulurv  rccojinilioii  of  hiJluiffenctj,  and  tlit^  votixeiiHciiUal  daiiiaj;t',s  aris- 
iii;j;  from  tlio  j)ii)loii;rjitiini  of  tlio  war,  and  witli  n-f^aid  also  to  otluir  (luestion.s  wliicli 
tliis  country  conld  not  liiivi'  admitted.  Instead  of  tliis  lieinj^  the  ease,  however,  tlic 
Treaty,  as  actnally  eonehnhMl,  narrowed  the  iiuestions  at  issm-  very  eh),si'ly  hy  eo.iiiiiiii;; 
the  reference  sohdy  to  h)sses  yiowinj;'  ont  of  f  lie  acts  of  iiartienlar  vessisls,  w/if/  m  '*hititi,i,i 
(III!  a  Ittryc  chisn  of  claimx  uiioii  which  the  Anuu'icans  liad  lieretoforc  insisted. 

Thus,  according  to  Sir  Stafford  Xorthcote,  also,  tlu;  chiims  abandoned 
by  the  United  States  were  tiiose  "  growing  out  of"  "the  preniutun^ 
recognition  of  belligerency."  He  evidently  did  not  think  that  they  luul 
abandoned  any  of  their  claims  "  growing  out  of  the  acts  of  the  vessels;" 
otherwise  he  would  have  suid  so.  On  the  contrary,  he  said  that  the 
*'  large  class  of  (rlainis  upon  which  the  Americans  had  heretofore  iu- 
sisted"  were  to  be  "shut  out,"  not  because  they  were  expressly  excliuled 
by  the  terms  of  the  Treaty,  but  l)ecause,  "by  contining  the  reference 
solely  to  losses  growing  out  of  the  acts  of  particidar  ves.sels,"  the  parries 
had,  in  his  Judgment,  nuide  it  impossible  for  the  United  States  to  eon- 
licet  the  objectionable  claims  with  what  the  treaty  pointed  out  us  tlic 
only  cau.se  of  the  injuries  which  the  Arbitrators  could  regard. 

The  United  States  thought  that  it  was  po.ssible  to  make  such  a  cuh- 
nectiou,  ami  .so  they  stated  in  their  Ca.se.  The  conflicting  revelations 
of  the  several  Commissioners  which  have  followed,  Justify  Sir  Statl'onl 
Northcote  in  his  remark,  that  "  in  order  to  maintain  a  thonmgh  good 
feeling  between  the  two  coiuitries,  it  was  better  *  *  *  that  the  i)ul)- 
lie  of  Unglaml  and  America  should  see  the  result  at  which  the  Cominis- 
sioimrs  had  arrived,  without  going  into  all  the  (piestious  rai.sed  and  dis- 
cu.s.sed  in  the  cour.se  of  the  negotiations." 

INIore  than  that,  they  show  tlu'  wisdom  of  the  decision  of  Her  l\[ajes- 
ry's  Government,  announced  by  Lord  Granville  in  his  speech  in  thc^ 
following  language: 

At  their  very  lirst  nieetinj;'  the  American  and  the  British  Commissioners  came  to  an 
asiieenient  tliat  they  wonhl  ke(^|>  secret  tiieir  discnsNioiis,  and  that,  thonj^h  accounts  nt 
tliem  would  be  coinmnnicated  to  tli<'ir  respective  (Jovernments,  yet  they  wert!  to  b(^ 
ronsideied  as  conlidential.  and  not  to  he  itnl)lis]ied.  I  may  add.  that  I  iiave  not  tln' 
liji'litest  doiiht  of  tlie  wisdom  of  the  conise  inirsned  hy  the  British  and  Anuiric.'iiiC'diii- 
iiiissioners.  They  had  thirty-seven  lonj;-  sittin<;s;  and  1  will  venture  to  say  that  if  cvciy 
one  of  the  ten  C'omniissioneis — not  to  mention  the  t  wo  abl"s<'eretaries — had  thoimhr  it 
incMnihcnt  iiiion  them  to  show  their  patriotism  and  jiowcr  of  debate  for  the  admiration 
<il'  the  two  iiemispheres,  the  thirty-seven  sittin^rs  would  havt;  been  multiplied  liv  at 
least  ten  times,  while  the  I'esnlt  of  their  delil)eratioiis  would  have  been  absolutely  nil. 
I  think  tilt!  (.'ommissiouers  on  both  sides  acted  advautaj^eoiisly  to  their  respective  (Jcv- 
i.'rnments.  The  representations  of  both  dis[»laycd  <>'reat  zeal,  ability,  ])atieuee,  teiupiM', 
and  an  honest  desire  to  come  to  some  comjncnnise,  even  thou<i;h  the  dilficultie.s  appcaml 
at  lirst  sifrht  to  be  irreconcilable.  The  nolile  earl  (Earl  Kiissell)  thinks  that  whciavir 
the  Anuiricaii"  propo.scd  anythin<>'  it  was  immediately  accepted.  This,  however,  was 
by  no  means  the  case.  The  fact  is,  that  the  Americans,  in  perfect  j;ood  faith,  laid  down 
a  jijrOat  many  conditions  which  the  British  Commissioners  at  once  declined  to  accede  to, 
and  even  refused  to  refer  for  consideration  to  the  (tovernment  at  home.  Many  other 
propositions  that  were  nuuh;  were  referred  back  to  fler  Majesty's  Government,  the  coin- 
missionei's  thinking  it  their  duty  to  inform  Her  Majesty's  Government  that  upon  tlioir 
answer  in  the  aihrmative  or  neyativo  the  continuance  of  the  negotiations  uiight  depeiul. 
In  considering  several  of  those  ((uestions  Her  M.ajesty's  Govenuneut  felt  that  there 
would  be  a  great  responsibility  iu  breaking  otf  the  negotiations,  aud  that  iu  such  an 
eveut  ridicule  almost  would  be  brought  up<-  the  Commissioners  aud  ourselves.  Never- 
theless, we  at  once  declined  to  yield  in  every  ca.se  where  we  deemed  it  our  duty  not  to 
yield.  With  regard,  however,  to  other  points,  such  as  those  relating  to  forms  of  ex- 
pression, and  which  did  not  conflict  with  the  real  objects  of  the  Treaty,  wo  williufjl.V 
either  acciuiesced  in  the  proposal  or  else  made  counter  proposals,  which  were  nut  iu 
the  same  spirit  of  fairness  by  the  American  Commissioners. 


NATIiiE    AXl)    AMOrXT    01'    DA.MAGKS. 


20') 


Wlioii  Ijonl  Ciiinis  licanl  tliis  stjitcmcnt  lie  said,  tliis  is  "a  Treaty 
upon  wliicli  the  (lovermnent  did  not  nieiely  K'^e  a  final  aj)- 
proval,  but  foi-  tlie  <laily  conii)ositi()n  of  it  tliey  were  virtii- 
iilly  responsible/'      The  Counsel  of  the  United  States,  tlierefore,  feel 
tliciaselves  Justified  in  asssuinin<>'  that  siu'h  masters  of  the  Kufiiish  laii- 
miaji'e  as  Mr.  (lladstone,  Lord  Granville,  the  Lord  Cinineellor,  the  Duke 
i)f  Argyll,  and  other  members  of  the;  JJritish  Cabinet,  nnist  have  bei'ii 
aware  of  the  extent  of  the  operative  words  of  the  lirst  artiele  of  the 
Treaty,  and  must  have  seen  that  it  contained  no  waiver  of  the  imlireet 
cliiiins,  or  limitation  of  the  powers  of  the  arbitrators.     Th<\y  «lid  not  ob- 
ject to  it,  and  it  must  have  been  because  they  felt  that  they  had  pro- 
tH'ted  Great  ISritain  by  the  condition  which  they  had  imi)osed  upon  the 
I'nited  States,  obi i«;in<;' them  to  trace  all  their  comidaints  of  injury  to 
tlioacts  of  the  cruisers  as  the  ori,<>inatin<;  cause  of  the  dainajie. 

(s)  The  si;>nature  of  this  Treaty  terminated  the  third  stage  of  the  ne- 
gotiations between  the  two  Govei-ninents.  It  left  the  Parties  solemnly 
bmuul  to  invite  other  Powers  to  join  them  in  creating;  a  Tribunal  to  take 
jurisdiction  of  ^'oll  the  said  claims  f^rowin;;'  out  of  acts  committed  by 
the  afoi'csaid  vessels,  and  jjenerically  known  as  thf  'Alabama  clainjs.'"' 
To  briuji'  a  comjilaint  "within  that  definition,  it  must  be  a  vlalm;  that 
is,  an  injury  for  which  the  Cnited  States  demand  j)ecuniary  compensa- 
tion. The  evidence  is  overwhelminj;'  that  from  the  commencement  they 
iiiive  demanded  com])ensation  for  their  national  injuries,  as  well  as  Ibi' 
tilt'  injuriest(>  their  citizens,  <;rt/wing'  out  of  the  a<;ts  of  the  vessels. 

It  must  also  have  been  jienerically  known  as  an  Alabama  claim.  The 
evidence  is  equally  con(;lusivc  that  tlu'  Anerican  Commissioners  under- 
stood that  the  national  and  ]uivate  injuries  set  forth  in  the  American 
sratement  at  the  iburth  conference  were  so  jienerically  known,  and  that 
ilcr  ^Majesty's  Commissioners,  to  say  the  least,  ought  to  have  known  it. 
Tlie  claim  must  also  grow  out  of  the  acts  of  the  (;ruisers.  That  is  a 
tact  which  the  United  States  will  be  held  bound  to  establish  in  these 
proceedings  to  the  satisfaction  of  the  Arbitrators. 

[i)  The  United  States,  without  susi)icion  that  this  palpable  sense  of 
tbo  Treaty  Avoidd  be  called  into  question,  prepared  ami  pre- 
sented their  Case  to  the  Tribunal  in  J)ecember,  on  that  r:,-,'-'  -t,i"t',".'i"t'i'.' 
theory.  >. 

After  stating  in  that  document  in  detail  the  ])rincii)al 
reasons  which  induced  them  to  think  that  Great  Britain  is  Justly  liable 
to  them  for  the  injuries  growing  out  of  the  acts  of  the  cruisers,  they 
presented  the  statement  of  those  injuries  in  the  precise  language  and 
t'oriu  in  which  their  Commissioners  had  stated  them  to  the  P>ritisli  high 
Comniissioners,  introducing  nothing  new,  and  varying  in  no  respect 
tiom  what  had  already  been  introduced  and  agreed  upon. 

They  ottered  evidence  which  might  enable  the  Arbitrators  to  determine 
the  amount  of  the  injuries  which  they  had  suffered  by  reason  of  the  loss 
and  capture  of  the  vessels  and  cargoes  belonging  to  their  citizens,  or  by 
reason  of  the  increase  in  the  rates  of  insurance,  or  bv  reason  of  the  ex- 
pense to  which  they  had  been  i^ut  in  the  pursuit  and  capture  of  the 
vessels. 

As  to  the  transfer  of  their  commercial  marine  to  the  British  flag,  they 
offered  no  evidence ;  but  they  said  that  they  "  asked  the  Tribunal  to  es- 
timate the  amount  which  ought  to  be  paid  to  them  "  for  that  transfer. 
Neither  did  they  ofter  evidence  of  the  damages  to  them  from  the  pro- 
longation of  the  war.  They  said  "  it  is  impossible  for  the  United  States  to 
•letermine;  it  is,  perhaps,  impossible  for  anyone  to  estimate  with  accuracy 
the  vast  injury  which  these  cruisers  caused  in  prolonging  the  war."    The\ 


the  Iith- 
i.r  Ihi.  ii.iiit 
Dtiiiiiiv.tiiin'*'^. 


rj3f? 


up 


■  t 

206 


AR«i;.\rKNT    OF    THE    INITKI)    STATES. 


I.cni!   iI.Im.v 
(•ri'iit   llritiiir 


nil. 


contented  themselves,  tlieiefore,  with  statinf?  reasons  why  (shonhl  tli. 
Tribnnal  hohl  that  Great  Britain  is  liable  to  make  compensation  totht'in 
for  this  class  of  injuries)  the  month  of  .Inly,  ISO.'J,  should  be  taken  to  be 
the  time  from  whi<!h  the  war  was  proIon^<Ml  by  tlie  acts  of  the  cruisers ; 
and  they  added  that  the  Tribunal  would  be' thus  "  able  to  deterniinf 
whether  Great  liritain  oujjht  not,  in  e(iuity,  to  reimburse  to  the  United 
States  the  expenses  thereby  entailed  upon  them." 
(m)  Fifty  days  after  Her  ALaJesty's  Government  was  made  acquainttd 
with  the  interpretation  of  the  Treaty  set  forth  in  the  Ann  ri 
can  Case,  it  took  exception,  and  averretl  that  it  had  not  «'\ 
pected   to  find   claims   juvforred  a<;ainst  it  for  increased 
rates  of  insuran(!e,  for  the  transfer  «)f  the  commercial  marine,  and  for  tin- 
lu'olon^ation  of  the  war. 

The  United  States  had  no  intellif^ence  before  the  ."»d  of  iM^briiiiiv 
of  this  construction  of  tiie  Treaty  by  Her  ^Majesty's  Government.  They 
think  it  fair  to  aij;ue  that  a  lony  silence  on  so  vital  a  (pn'stion  as  tlic 
extent  of  this  submission  implies  some  doubt  in  the  mind  of  the  i)artie> 
reinaininjjf  silent  as  to  the  justice  of  their  conclusions.  Jn  a  siinilar 
case  between  i)rivate  ]>arties,  it  niiyht  well  be  assumed  that  so  loiiu  a 
delay  in  comniunicatin<j  the  views  of  a  i)arty  situated  as  Her  3Iajest.v> 
(rovernmeut  was,  after  full  !  lowh^l^ic  of  the  views  of  the  other  party. 
would  be  deenu'd  to  be  a  w.uver  of  the  right  to  object. 

(r)  Jt  has  been  said  that  the  Treaty  of  Washington  involved  several 
coiKtessions  on  the  i)art  of  (Jieat  Britain,  which  svere  tin- 
1  supposed  i)rice  paid  for  the  abandonment  of  the  national 
claims  of  the  United  States. 

1.  It  has  been  assumed  that  the  declaration  of  certain  principles  to 
fjovern  the  Tribunal  was  a  concession  to  the  United  States. 
ViUt,  nn fortunately  for  this  theory,  it  is  stated  in  the  Jiritisii 

Case  that  these  principles  are  "in  substantial  accord  with  the  principles " 
of  the  general  system  of  international  law ;  and  further,  Lord  Bipon. 
the  chief  of  the  British  High  Commissioners,  has  said  that  "Great  Britain 
accomplished  a  signal  beneflt  in  binding  the  American  Government  In 
rules"  from  whicli  "no  country  on  the  face  of  the  earth  is  likely  to  de 
rive  so  much  benettt  as  England." 

2.  It  is  said  that  the  expression  of  regret  for  the  escape  of  the  cruisers 
was  a  concession ;  but  it  cannot  be  supposed  that  in  the 


MI|i|Ki'»-iI  rnlircs 
IK.!-  \t,  till'  I'mli 
SIi(I»-in  thf  Iri'iity 


■rill-  nili's. 


K.\iire(».>i()n    I'l'   rt' 
trM. 


FflllHUS. 


friendly  expression  of  regret  for  the  escajjc  of  the  cruiser? 
Her  Majesty's  Government  &^o'</cf*'nerf  for  the  withdrawal  of  claims  wliieh 
they  regarded  as  dangerous  to  them. 
;j.  Acquiescence  in  the  refusal  to  consider  the  Fenian  claims  in  the 
Joint  High  Commission  has  been  putforward  as  another  con 
cession.  But  the  evidence  shows  that  this  class  of  claiiii> 
was  not  embraced  in  the  correspondence  on  which  the  Joint  High  Com 
mission  was  founded,  and  therefore  could  not  be  considered,  although 
in  presenting  it  Her  Majesty's  Government  recognized  the  propriety  et 
presenting  claims  for  national  as  distinguished  from  claims  for  private 
injuries. 

In  fact,  Fenian  claims  for  national  injuries  were  presented  by  the  lUit 
ish  Commissioners.  They  are  thus  delined  in  the  instructions  to  the 
British  Joint  High  Commissioners : 

In  connection  Avitli  the  claims  of  Biiti.sh  snlijects,  tlnn-e  is  a,  claim  on  tlio  part  of  tin 
tloniinion  of  Canada  for  los.ses  in  life  and  property,  and  vxjwiiditiiren  occasioned  by  tin 
tilibustcrins  raids  on  the  Canadian  frontier,  carried  on  from  the  territory  of  the  Initui 
States  in  the  years  1H()H  .and  1870.' 

'  Brit.  App.,  vol.  IV. 


NATUKK    AND    AMOUNT    OF    DAMAGES. 


207 


The  prestMitiition  of  theso  claims  to  tlie  Joint  Hi^li  ('oinmissioiiors  of 
tlie  United  States  is  recorded  in  the  followinj^  words  in  the  i)rotocol : 

At  the  coiifenMico  on  the  Ith  of  March,  *  *  tiie  Hiitinh  Ccnimis.sioin'i.s  propo.sfd 
tliiit  the  Joint  HiKl>  ConiniiHHion  shoiihl  eonHider  the  (ditinis  tor  injuries  whii  h  tiie  )ieo- 
plc  of  Canathi  him  sntfered  from  what  wert^  known  an  the  Fenian  raids. 

At  the  tonfereiiee  on  the 'idth  of  April,  tiie  Hritiwh  t'oiiiniiMNioners  a^ain  hronj^lit 
III  tore  tlie  Joint  Ilijrji  ('oniiniMHion  the  elainis  of  the  ]ieo)de  of  Canada  for  injuries  siif- 
tcred  from  tlie  Fenian  raids.  'J'liey  said  they  were  insfrnctnl  to  primnl  them:  vhumx,  and 
to  state  that  they  were  ie<i;arded  hy  Her  Majesty  (Joveriinieiil  as  comiiijr  witliin  the 
tidss  of  siilijeets  indicated  liy  Sir  Edward  Thornton  in  his  letter  of  .laniiary  '.i(ith  assiih- 
jiifs  for  the  consideration  of  the  .Joint  llif;!'  Commission.' 

Tiie  American  Commissioners  rejilied  that  they  were  instructed  to  say  tliat  the  (iov- 
trnincnt  of  tlu^  Unittnl  States  did  not  re<;;ai<l  these  (daims  as  coniinjj;  within  the  class  uf 
^llllj^■«•ts  indicated  in  that  hitter  as  subjects  for  the  consideration  of  the  Joint  Hi;;li 
(Kiiimission,  innl  tliat  they  were  without  any autliority  from  their (ioverniiieiit  to  con- 
sider tiieiii.     They  tluMcfore  deciintMl  to  do  so. 

At  the  conference  on  the  :»d  May,  the  Jhitisli  Commissioners  stated  that  they  were 
iiistruettMl  by  tln'ir  (iovernmciit  to  express  their  re>;iet  that  the  Anierieaii  Commissioii- 
,rs  were  without  aiitlKuity  to  (U'al  with  tlie  (luestion  of  the  Fenian  raids,  and  they 
iM(|uired  whether  that  was  still  the  cast-. 

The  Amciican  Commissioners  rei»lied  that  they  could  see  no  reason  to  vary  the  reply 
lonnerly  j^iveii  to  this  projiosal. 

The  Itritish  Hiyli  Conimissioners  said  that,  under  these  circumstances,  they  would 
not  iir';e  further  that  the  settlement  of  these  claims  should  be  included  in  the  present 
treaty.  And  that  they  had  the  less  dilticnlty  in  doiny  this  us  u  pintioii  of  the  chiims 
irvrc  of  a  roiixtriictivc  and  hifirnilial  I'liaravlcr. 

No  argument,  therefore,  can  be  drawn  from  any  sn])]>osedcoiices«ions 
by  (heat  JJritain,  to  Justify  th;  t  power  in  denying-  the  jurisdiction  of 
this  Tribunal  over  the  national  claims  which  were  presented,  and  i)er- 
sisted  in,  by  the  United  States.  Is'or  can  it  be  assumed  that  Her  JMiij- 
esty's  Government  objected  on  principle  to  a  class  of  claims  which,  in  a 
parallel  case,  Commissioners  were  ^(resenting  and  urging  upon  the 
Tnited  States. 

(/<')  Whatever  doubt,  if  any,  may  ever  have  existed,  or  have  been 
set  up  on  the  part  of  Great  Britain,  as  to  the  true  tenor  of 
tlie  written  Treaty,  no  such  doubt  can  reasonably  exist  at  the 
pie.sent  time. 

While  Mr.  Gladstone,  in  the  House  of  Commons,  was  tjsserting  in  such 
positive  terms  that  the  so  called  indirect  claims  are  excluded  by  the 
mie(|uivocal  and  positive  language  of  the  Treaty,  and  denying  that  the 
Treaty  could  possibly  receive  any  other  construction,  Lord  Derby,  in  the 
other  house,  admitted  that  the  Treaty  was  susceptible  of  the  construc- 
tion placed  upon  it  by  the  United  States  ;  and  in  a  later  debate  both 
Lord  Derby  and  Lord  Cairns  in  unequivocal  language  supported  the 
same  views. 

All  delusion  on  that  point  is  now  dispelled.  No  statesman  in  Great 
lUitain  would  probably  now  make  the  assertion  made  by  Mr.  Gladstone, 
in  February,  in  the  House  of  Commons. 

The  Treaty  speaks  for  itself.  It  is  universally  conceded  that  its  natu- 
ral construction  is  that  put  upon  it  in  the  American  Case.  Discussion 
of  the  subject  has  advanced  so  far  at  least  towards  dispelling  misappre- 
hension. 

(r)  Neither  the  hypothesis  of  Mr.  Bernard,  nor  that  of  Sir  Stafford 
Xorthcote,  is  produced  in  the  celebrated  debate  in  the  House  of  Lords, 
which  has  already  been  alluded  to,  and  which  has  been  adduced  by  the 

•!>ir  Edward  Thornton,  in  his  note  of  the  25th  of  January,  proposed  a  .settlement  of 
tlie  ([iiestions  "  with  reference  to  the  fisheries  on  the  coast  of  llor  Majesty's  possessions 
ill  North  America,  and  as  to  any  oth(;r  questions  between  them  which  afi'ect  the  rehi- 
tioiis  of  the  United  States  towards  those  possessions." 


f'lniclii-^idns. 


h'\ 


>,#■ 


208 


AKGIMKNT    OF    TIIK    INITKI)    STATKH. 


I'rltisli  fiovrnmiciit   iis  notict'  to   \\\o  Kiiitod  Sfiitos,  1h'('!MIS(>  of  tlic 
iill«';i'<'<l  |>i«'.s('ii»'('  of  .Mr.  Sclioiick,  th«!  Ain('ri(!iiM  Minister. 

Ill   the  first  pliicf.  tlic  cxpn'ssioiis  of  Lord  (IriiiiN  ilh^  on   tiiat  orci 
sioii  4li<l  l»ut   very  ohsciiri'ly  rrfi'r  to  tlu'  (|iu'sti(>ii  of  tlic 


l.nr-t      (iniiiv  itif'- 


so  eiilN'd  iinlii'cct  cliiiins.     He  siiid  : 


'I'lii'  iinhli"  I'.iiil  Hiiiil  tliiit  till'  I'liift'd  Stiitcs  liiis  ininlc  no  coiwrsHions  ;  hi;!  in  flic  \  1 1  \ 
lii'^iiiiiiin;;  of  the  iirotoculs,  .Mr.  |''isli,  ninrwin;;  I  In-  |ii'(i|ii)sirii>ii  lir.  Iiiid  niiiili!  Ix-I'imv  In 
iiiiicli  liii';;)'!'  iiiiliitnal  rlainis.  nuIiI  : 

••  'I'lic  liistoiy  III'  till'  Aliiliiiniii  and  dtln'i'  cruisci'H  wliicli  had  Iti't-n  lilted  ont,  or  aimed, 
cii' ei|iii|i|ied,  or  wliieli  Inid  reeeised  an^inentation  of  force  in  (ircat  ISritain  or  in  lin 
I'olonies,  and  of  tlie  opi'i'ations  of  tlione  sessids,  showed  extensivt^  direct  Ioshcs  in  iIh. 
caiilnie  and  deslrnction  of  a  hir;;'e  nniniter  of  vessels  with  their  I'.'ir^ioes.  and  in  lln 
heavy  inilional  ex)iendilnreHi  n  the  |nirsnit  of  tlu;  crniser.s;  ainl  indirect  injnry  in  tlic 
transfer  of  a  lar^jc  |iarl  of  liie  .\iiieriean  (loimnercial  marine  to  tlu)  Ih'itisii  thiy;.  in  tin' 
enhanced  )ia\  nu'iitsof  insurance,  in  th<!  |ii'(>lon;rati(ni  of  tlu;  war,  and  in  the  addition  ot 
a  larv,e  sum  to  llie  cost  of  the  nar  and  the,  siipiiression  of  thi^  |{eliellion:  and  mNm 
-showed  that  (ireat  IJritain,  h\  re  ison  of  failure  in  the  proper  (dw^'rvanee  of  In  i 
diilies  as  a  iiiMitral,  had  heeonie  jii^lly  lialde  for  the  acts  of  those  cruisers  anil  of  llieii 
lenders;  that  the  claims  for  the  loss  iind  destruction  id'private  property  which  Imd 
rhns  far  iiecn  |)iesented  anionnted  to  ahont  sj  I.immi.ikmi  without  interest  ;  wliiili 
amount  was  liahle  to  lie  j;reatly  increased  hy  idainis  whicli  had  not  heen  jiresented."  ' 

Thest!  were  pretensions  wiiich  miy;ht  have  Iteen  carried  out  under  the  former  Arlii- 
tration  ;  hut  they  entirely  disappear  under  the  limited  lel'erciiee  which  iiududes  nicreU 
romphiints  ai  isinj;  out  of  the  csea|ie  of  the  Alaliama.  ■ 

Now  there  an;  some  tliiiif;'S(|iiit<'  reiiiarkahle  in  tliis  part  of  Lortl  (Iriiii- 
\  ille's  speeeli — tlie  only  part  \vlii(;li  rel'ers  to  the  siibjet!t. 

Ill  eitiii;^'  the  stateiiieiiD  made  by  tiie  American  Commissioners,  (not  .Alt. 
I'isli.)  wliieii  appears  in  tlie  ])rotoeol  of  .May  1,  1S71,  he  stops  at  tlic 
wind  ''presented,''  noted  with  a  period,  as  if  it  were  tlie  coiiclnsioii  ot 
tlie  statement  of  tlu^  Aineriean  Commissioners;  while  in  the  text  there 
is  a  semieoloii  after  the  wonl  "j)resented  :"  and  the  .sentence  concludes 
with  the  followiiio'  words: 

That  the  cost  to  which  the  (ioNcrnnient  had  lieen  jiiit  in  the  ]Mirsuit  of  the  eniisci- 
<'ould  easily  he  ascertained  hy  cert  ilicatcs  of  (Mivernnieiil  aei'oiintinH;  oflicers;  that  in 
I  he  liojieof  an  aiiiicalde  settlement,  no  estimate  was  made  of  tlu;  indirect  losses,  wilii- 
(Hit  pit'judice.  !iowe\-er,  to  theri^ht  to  indenmilicatioii  on  their  account  in  the  event  ol 
110  si!(di  settlement  heinj;'  made. 

Xow  the  concliidino-  woids  of  the  sentence,  thus  omitted  by  Lord 
(iraiiville,  contradict  the  intention  which  i.s  a.scribed  to  the  American 
(^ommi.ssioners,  tnid  thus  annihilate  the  foundation  for  the  sub.setpiont 
remarks  that  tlie.se  ''inctensions  entirely  disai)pear  under  the  liiiiitod 
reference  which  iuchides  mere  complaints  arising  out  of  the  escape  of 
the  Alabama/' 

Lord  (Iranville  <h)es  not  say,  with  3lr,  IJernard,  that  tlie  .supposed 
limitation  of  the  reterence  con.sists  of  inaecurate  language,  puriwsoly 
n.-ed  in  the  spirit  of  diploiniu-y ;  uor  doe.s  he  .say,  with  Sir  Stattbrd  North 
(Hite,  that  the  limitation  is  'o  be  found  in  souu^  unrecorded  under.stinid- 
ing  of  Commissioner.s ;  but  iic  assumes  to  tind  the  limitation  in  the  ex 
press  words  of  the  Trent;. , 

This  is  done  by  assuming  that  the  Treaty  itself  "  includes  merely  roni- 
plaints  avisinff  out  of  the  escape  of  the  Alabama.''^  This  assumption  i> 
entirely  unfounded  ;  for  the  Treaty  submits  "all  the  said  claims,  grow 
ing  out  of  acts  committed  by  the  aforesaid  ves.sels,  and  generically  known 
as  the  'Alabama  claims;'"  whicli  is  a  very  different  thing  from  tlu' 
iccital  in  Lord  Granville's  speech. 

Indeed,  taking  that  speech  as  a  whole,  it  is  by  no  means  clear  that 
Lord  Granville  intended  to  set  up  any  other  limitation  in  the  Treaty  than 
such  as  would  exclude  claims  on  account  of  premature  recognition  of  tlu* 


■;ii 


>Pail.  Paper,  No.  3,  (1871,)  p.  8. 


Ilaiisavd,  vol.  ccvi,  p.  1851. 


NATCKK    AND    AMOrNT    (>F    DAMA<;KS. 


2()0 


lR'lli};i'ri'iic(?  ol"  tln^  (Joiit'iMh'iatea  by  (Iroat  Jiritiiin.    This  liyputlio^is 
would  expluin  his  ivfcrciice  to  chiiins  coiiiicctcd  with  th«'<'niisers. 

Wo  have  sullicioiitl.v  demonstrated,  we  think,  that  neither  this  phrase, 
nor  any  otiier  eontain^'d  in  tlie  Treaty,  jastiliestiu'eonstriietion  put  upon 
it  hy  Lord  (Iranville. 
In  eonii>arinj^  what  was  sni<l  in  this  (Ud>ate  in  the  House  of  Lords  by 

Lord  (Jranviik^  and  Lord  Cairns,  with  wliat  is  said  hy  Sir     ^,,,| , ,,.. 

Htatlbrd  Northeote  in  his  speech,  and  Mr.  ISernanl,  in  ids  "■-""'•"•" « 

lecture,  we  think  we  see  the  explanation  of  all  luiseoiuu'ptions  respeetinj; 
tlie  seope  of  the  tn-aty  itrevailiuf;'  in  (Ireat  Iliitain. 

Tlu^  .I(>hnson-l'larendon  Treaty  did  not  exclude  fronieonsideraticui,  at 
least  by  words  of  expi'ess  exclusion,  claims  of  the  L'nit«'<l  States  on  a(!- 
coantofthe  prenmture  re(!Oj;niti«m  by  (Jreat  lliitain  oftlu^  insurgents. 
Undue  {generality  of  lauKua};e  was  imputed  to  that  Treaty  by  uuMubers 
of  either  house  of  I'arlianu'Ut.  When  the  Treaty  <tf  NVashinjitiUi  came 
under  discussicm  in  rarliament,  L<n'<l  (iranville^  said,  anti  :^aid  truly, 
that  in  this  respect  the  Treaty  of  Washinji'ton  had  advantajies  over  the 
Johnson  ('laren(h)n  Treaty.  The  tbrnu'r  di<l  not,  like  the  latter,  (Munpre- 
iiend  the  belli;;erency  (piestlou  as  a  yionnd  of  claim.  Lord  (Iranville 
]»roved  this  by  reference  to  the  protocols  and  also  to  the  Treaty,  which 
in  terms  confines  the  Anu'rican  r«'clamation  to  losses  yrowiu};'  out  of  the 
acts  of  cruisers  of  the  Confederates  designated  by  the  ty[)ical  name  of 
the  Alabauui. 

Mr.  JJermird  spoke  in  the  same  sense  when  he  said  in  the  renmrks 
already  (pu)ted  that  the  claims  submitted  were  siH'ci/ic,  (which  is  true,) 
as  they  are  oidy  the  class  of  claims  which  "irew  out  of  the  acts  of  the 
cruisers. 

^Vhen  Sir  Stafford  Northeote  speaks  of  an  "un<lerstaiHlin{»"  or  ii 
•'l)romise''  in  limitation  of  the  American  claims,  he  confounds  the  two  to- 
tally distinct  questions  of  claim  on  account  of  the  Queen's  Proclama- 
tion and  the  initional  injuries  occasioned  by  it,  and  the  claims  on  ae- 
connt  of  the  insurgent  cruisers  aiul  the  national  injuries  occasioned  by 
their  acts.  It  was  understood,  and  it  is  uiulerstood,  that  the  former 
class  of  injuries  are  not  comprised  in  the  Treaty,  but  are  in  effect  exclu- 
ded by  the  express  language  of  the  Treaty,  which  confines  reclamation 
to  acts  of  the  Confederate  (nnisers.  It  was  understood,  and  it  is  under- 
stood, that  the  claims  of  the  United  States  undertint  Treaty  are  co-<'x- 
teiisive  with  losses  growing  out  of  the  acts  of  the  Confederate  cruisers 
icithout  limitation,  because  such  is  the  express  stipulation  of  the  Treaty. 
Sir  Stafford  Northcote's  memory  is  at  fault  in  suggesting  that  any  un- 
derstanding existed,  or  that  any  promise  was  ever  made  to  pi  event  the 
United  States  from  presenting  claims  for  national  injuries  in  this  behalf. 
These,  and  the  dainjs  of  private  persons,  are  two  (^lasses  of  claims  which 
had  been  previously  presented  by  the  American  Government,  and  had 
Iteen  insisted  on  by  it,  in  all  the  eorTesi)ondence  and  acts  associated 
^vith  the  Treaty  of  Wastnngton. 

(y)  We  think  the  Arbitrators  mustcondudethat  Her  Majesty's  (Jovern- 
iiient  is  in  error  in  assuming  that  this  august  Tribunal  is  ex- 
cluded from  the  consideration  of  any  ela-*s  of  claims  brought 
before  it  by  the  Case  of  the  United  States.    The  previous  negotiations 
of  tlie  parties,  the  history  of  the  cliams,  the  explicit  declarations  of  the 
American  negotiators  in  the  conferences  of  the  Joint  High  Commission, 
the  proceedings  in  both  Houses  of  Parliament,  the  long  delay  of  the 
British  government  in  acting  upon  the  American  Case  after  they  hnew 
its  contents,  the  natural  and  only  reasonable  construction  of  the  lan- 
lage  of  the  Treaty  itselt^ — all  strengthen  this  belief. 
14  c 


210 


AKGIMEXT    01"    THE    IXITEIJ    .S'J'ATE(>i. 


•(c)  When  two  Nations  have  agreed  by  Treaty  to  submit  to  arbitration 
Ari.it'Mion  i„i.,v.  a  question  of  national  wronj"-  between  them,  such  agreement 
th«i.i«.eniw,.r.  takes  thc  placc  of  war.  If  therefore  it  could  by  ingenious 
reasoning  be  made  to  appear  (which  we  deny)  that  tlie  British  con- 
struction of  this  Treaty  might  i>ossibly  be  maintained  as  pUiusible,  yet 
we  conceive  that  this  Tribunal  will,  in  the  general  interest  of  peace,  feel 
itself  not  only  authorized,  but  required,  to  so  construe  the 
Treaty  as  to  take  to  itself  the  decision  of  every  question  per 
tinent  to  the  issues,  which,  left  unsettled,  could  lead  to  war. 
{a  a)  Pradier  Fodere,  in  one  of  his  notes  to  Vattel,  nuikcs 
the  following  observations : 


The    Tril>iiiml  tht 

ptiufr.-. 


ri-a.lj.-i  Ki.,li-i. 


L'  aibitia<^i',  tri's-nsito  dans  le  nioyon-Age,  ot«'  j>re.sc|iie  onticreinciit  ui^'gliyo  dans  Ic. 
temps  luoderiies  ;  Ics  exomples  d'arbitragcs  oft'eits  et  ai'ceptt's  sont  dcncniis  de  \}\ns  en 
plus  raves,  par  I'experionce  des  inconveiiieiits  qui  seiuhleiit  etre  presqnc  iiiseiieralilt  > 
de  ce  iiioyeu,  ordinairenieiit;  iusuflisant  par  le  ili'laut  d"un  jtourvoir  wanctiouateur. 

Los  (jue  h's  <!;randes  puissances  eonstitnent  iin  tribunal  arbitnil,  ct?  n'est  ordiiiiiiiv 
uieut  (luc  pour  des  objets  d'intt'iet  seeondaire.' 

Yet  all  men  are  of  ac(;ord  to  look  to  interniitional  Arbitration  as  (tm 
of  the  means  of  diminishing  wars,  and  nmcli  had  been  expected  as  iii{ 
examjile  from  the  ])resent  Arbitration. 

The  principle  of  international  arbitration  is  well  dctiiied  by  Ciilvo. 
as  follows: 

l/iirliitrii^i'  intcrMationiil  derive  de  ia  nieiiie  eiiMse  et  repose  siU'  les  nii'iiies  |»i'ii(i|it  > 
,._,,  que  rarbitraj-e  piive  eu  niatiere  eivile  on  eomineiiiiale.     11  en  ditlerc  i  ^ 

ee  qni'  eehii-ei  esf  siiseeptilile  d'lionutlojfation  i)av  nn  tribunal  unl: 
I'Mire.  qu'll  est  jibsdlnment  ob!i<;at()ii'e  et  (pie  rexei-ution  en  jient  etre  toujonrs  snivi' 
Itar  les  \oies  de  droit  eounnnn.  Knires  h's  •■tats,  le  ]irineipi'  de  son\  erainet»'  et  (riiitji  ■ 
pendaiiee  H'cipr<)<|ue  n'adniet  en  eelle  inatii'i'ts  qn'nn<'  obli;;ation  morale  de  s'ineliiii: 
devaut  les  resnltats  de  raibitrai;('  sidlieiU':  aiissi,  avant  de  reeoniii'  a  ee  nioilf  d 
solution  et  i»our  niienx  assurer  ie  Itut  dt'linitil'  i[ne  I'on  i>ouisui(,  est-il  (Tusaj^e  (pK'  1.  - 
parties  en  jui'-senee  si^nent  ee  (|u'en  lanii'aiie  de  droit  on  ajiixdle  un  (■oiiiprdiiii'i,  e'cst-a- 
dire,  nne  eonvention  sju'eiabi  qui  prreise  in'tteineiit  la  (luestiiui  a  dt'battre,  expoM 
I'eusendde  des  ]ioints  de  I'ait  on  de  droit  qui  s'y  rattaelient,  traee  b-s  liniites  (hi  inlr 
dt^volu  a  Tarbitre  t't,  saiif  les  eas  d'ericnr  inaterielle  oil  d"in.jiistii;(!  tlai>rante,  iuipliMM' 
reni;agemeut  de  se  souiuettre  do  bonne  tbi  a  la  (b-eisioii  (pii  poiiira  intei'venir.- 

Xeither  ]>arty  loses  anytliin.u'  Ity  such  good  faith.  The  iintiire  of  [\u 
contract  of  international  tubitratiun  alVords  perfect  remedy  to  citlu  i 
party,  in  the  contingencies  in  which  either  is  wronged,  namely  : 

I".  Si  la  sentence  a  ('t<^  ]U()none('e  sans  (|ne  les  arbitres'v  aieiit  <''li'  snl'lisannneiil  nmn- 
rist'S,  on  lors(iu'elle  a  statin''  en  didiois  on  au-dela  des  t(}rnies  (\n  conqu'oinis : 

2".  Lorsijiu'  ceux  (pa  out  rendu  la  sentence  se  tronvaieiit  dans  nne  situation  (I'iin-i 
jiaeitt!  l(';nal(!  on  morale,  absolne  on  relati\e,  jtar  exeniple.  s'ils  (taieut  li*'s  jtar  des  cii 
;;aj>einents  nntt'iieurs  on  avaient  dans  K.s  einielnsions  Ibnniilt'es  nu  iut('iet  diivi' 
iguon''  des  ]>artios  (pii  les  a\aicnt  elioises  ; 

;{".  ]jors(p(e  les  arbitres  on  I'liiu^  des  |iarties  adverses  n'ont-  pas  a;;i  de  bonne  tbi  ; 

■l".  Jjorsquo  Tun  ou  I'autre  de  t-tats  iut('resses  dans  la  <iuestion  n'a  juis  ('te  eiiliii'l 
on  mis  a  uu'-ni(!  do  .justilier  de  ses  droits  ; 

.")".  Lorsipu!  la  sentence  porte  snr  des  ((Uestions  non  ))ertiuentes  ; 

<)".  Lors(pic  sa  tenenr  est  absoluiuent  Kuitiaire  aux  reifjes  de  bi  Justice  et  iic  imik 
d('s  lors,  faire  r(jbjet  d'une  transaction. 

Conspicuous  among  causes  of  exception,  is  the  case  of '*  a  .sr/r/em' 
which  bears  on  questions  not  pertinent."  Hut  neither  party  can  aiitici 
pate  that  the  arbiters  will  undertake  to  decide  any  (|uestion  beyoini 
their  competency.* 


'Vattel,  Droit  des  gon>*,  ('-d.  1'.  I'odi'rt'.  toin.  ii,  <;bai».  xviii,  sec.  IV.'S*,  note. 

-'  Calvo,  Droit  international,  ('d.  (V.,  l-^7(t,  toiii.  i,  )».  7i>l. 

'('alvo,  ibid.,  p.  7(>(l.     ('(unpare  lielt'ier.  Droit  international.  li\ .  ii.s.  liii»i;  HIiihImIi  ■ 
Code  <le  Droit  iiiteinational.  li\.  i.  s.  (KIT. 

'  i'radier   Fo(l('r(',  La 'i»uesli(ni  (b'  TAIabania  el    le  Droll   des  yens:    I'lerantnm.  i' 
••iibilrali  iiileina/ionali  e  11  tialiato  Wasbinf;|(i!i. 


■k'  ..! 


XATLRK    AND    AMOl'NT    OF    DAMAGES. 


211 


hb)  Great  Britain  entered  into  an  engagement  to  submit  all  the 
points  in  (question  to  tiie  Tribunal.  We  only  ask  the  Tribunal  to  exer- 
cise the  measure  of  jurisdiction  which  has  been  conferred  upon  them. 

We  assume  that  the  Arbitrators  have  the  power  in  the  first  instance 
to  Judge  of  their  own  competency,  both  in  point  of  the  scope  of  the 
Treaty  and  of  the  i)ossible  action  of  either  Government. 

The  ettect  of  the  Treaty  is  to  create  a  tribunal  with  complete  Jurisaic- 
tion  of  the  suhject-matter.  It  differs  from  a  tribunal  established  by 
municipal  law  in  two  respects:  first,  that  as  Arbiters  they  do  not  poase^is 
the  power  of  causing  the  execution  of  their  sentence ; '  and,  secondly, 
tliat  constituting  an  international  tribunal,  no  such  authority  exists  to 
enforce  tleir  sentence  as  in  the  case  of  arbitration  under  municipal  law. 
In  fact,  the  sanction  of  the  i<cts  of  the  Tribunal  is  the  faith  of  the 
Treaty. 

,('  t)  That  the  Tribunal  possesses  power  to  pass  on  the  <|uestion  of  its 
lompetency  is  a  conclusion  of  general  law;  otherwise  it  would  be  a 
council  of  mediation,  not  a  tribunal  of  arbitration.  It  is  a  conclusion 
;ils()  from  the  tenor  of  the  particular  Treaty,  which  commits  to  tiie  Tri- 
luuial,  not  only  ''  all  ditlorences"  and  "all  claims,"  but  "  all  questions" 
snlmiitted  by  either  (iovernment. 

This  conclusion  is  in  perfect  consonance  with  pure  reason.  We  shall 
!ii»t  assume  that  either  (iovernment  maintains  that,  where  one  of  the 
jpiuties  to  a  contract  suggests  doubt  as  to  the  meaning  of  some  clause, 
siicli  exi)ression  ot  doubt  dissolves  the  contract.  Tiiat  is  contrary  to 
law  and  to  reason.  If  it  were  admitted  between  individuals,  no  man 
rould  ever  be  compelled  to  execute  a  contract.  If  it  were  admitted 
lictween  nations,  it  would  be  idle  to  enter  into  treaties;  for  then,  if, 
after  treaty  concluded,  one  power  regrets  its  engagement,  it  needs  only 
to  proclaim  a  difVerence  of  intention,  and  thus  to  frustrate  the  rights  ot 
tlic  other  I'owei'. 

>(J  d)  Indeed,  if  we  may  regard  the  pertiiu^nt  explanations  of  ]\Ir.  Iler- 
:i;u'd.  there  is  general  reason  for  submitting  the  construe-     „,,  „,„„„.,„„, 
lion  of  treaties  to  the  Judgment  of  arbiters,  and   special  '■"""' 
ivason  in  re^^.ird  to  the  i)resent  Treaty,     lie  says  of  treaties  generally: 

1  may  lie  i)onnitto(l  to  oliscrvo.  in  passinj;-,  bolbie  taking  loavc  of  this  jiait  of  tliosiih- 
ict.  tliat  a  tivaty  is  an  iiislrinncnt  which  yon  cannot  send  to  ho.  settled  in  a  convtiy- 
iiinr's  chaniber.-s,  nor  coniniit  (o  a  knot  t)f  \vian^lin<;-  attorneys;  no,  not  even  to  the 
I  itnily  solicitor.  It  is  an  instrument  in  the  framing;  of  which  the  sensitive  and  i)unc- 
tilious  self-respect  of  j^overnnients  and  nations  has  to  l)t^  consulted,  and  discussion 
must  nev  'r  be  snlVered  to  degenera<^^  into  altercation  ;  in  which  it  is  often  lu'cessary. 
lor  the  sake  of  a;;r»^onient,  to  accept  a.  less  tinisheil  or  more  accurate  one  ;  and  which 
miwt  lie  construed  liberally  and  reasonably,  according;  to  what  ajipears  to  he  the  true 

iitcution  of  contracting  parties.  In  all  this,  there  is  no  excuse  for  eipiivocal  expres- 
-iiiii.  and  no  delense  ot  such  ambiguities  can  in'  founded  on  it ;  but  of  ajtparent  fanlt> 

I  expression  it  has  often  been,  and  often  will  be,  tins  unavoidable  cause. - 

Tlie.se  expressions  seem   to  be  introduced  as  an  apology  for  some 

iiiteiitioiml  ob.scurity  of  hmguage  in  the  present  Treaty.     We  do  not 

sn  regard  the  matter.    The  history  of  the  negotiations  in  this  case 

abiuidantly  shows  that  every  word  of  the  Treaty  wjis  well  weighed  by 

tlu'  liritish  Mini-sters  before  it  was  signed  by  their  Commis.sioner.s. 

However  this  may  be,  if,  as  Mr.  Bernard  says,  in  order  ^o  conform  to 

tio  delicacies  of  diplomatic  intercourse  and  of  international  negotia 

ini!.  it  was  necessary  to  employ  in  the  Treaty  iinfinislwd  language,  inav 

Hmtf  language,  "  faults  of  expression,"  to  say  nothing  of  ctiiiivocal  lan- 

^"iige,  then  there  is  all  the  more  reason  why  the  United  States  shoidd 

Mellii.  Institutiones  Juris  civilis  Lusitani.  lib.  i,  tit.  4,  sec.  21. 

l.icture  on  tlie  Treaty  of  Washington.  May '2H.  lH7'.i,  riOi;<le-.i  Times,  MayiH.  l-iTV. 


m 


i:  f 


212 


ARGUMENT    OF    THE    UNITED   STATES. 


aak  tl  <i  Tribunal  to  tliapel  the  doubts  which  were  created  by  the  Briti.sK 
Co»ri mission,  for  the  benefit  of  the  Britiihh  (Jrovernment. 

If,  contrary  to  our  belief,  the  language  of  the  Treaty  be  vague  or  equi 
vocal,  or  if  it  rests  on  understandings  unwritten,  the  question  should  he 
judged  by  the  Tribunal,  in  whose. judgment  both  parties  ought  to  iiavc 
implicit  confidence.  Should  the  judgment  involve  any  act  ultra  vires. 
then  will  be  the  time  for  the  injured  party  to  refuse  to  accept  such 
judgment,  if  the  injury  is  great  enough  to  justify  so  extreme  a  remedy. 

(e  e)  The  United  iStates  tlierefore  adhere  to  the  Treaty  as  of  their  own 
right ;  they  adhere  to  it  as  the  greatest,  perhaps,  of  all  modern  ettorts,  tc 
establish  the  i)rinciple  of  international  arbitration;  and  they  adhere  to 
it  in  the  sentiment  of  profound  consideration  for  this  august  Tribunal. 
and  for  the  sovereign  States  which  have  been  pleased  to  accept  tlitii 
delicate  «luties  in  this  behalf  at  the  common  solicitation  of  Cheat  Britain 
and  the  United  States. 

And  liere  we  <lismiss  all  ('onsiderations  of  this  order,  and,  maintain 
ing  the  competency  of  the  Tiibunal,  we  proceed  to  the  question  of  tin 
amount  of  damages  claimed  by  the  United  States. 


1  I  I  .  —  :M  K  a  S  U  E  I:    O  I-'    D  A  M  A  (I  K  S  . 

The  responsibility  of  the  British  Clovernment  having,  as  we  tiii 
u„iHH  „,r ,„..,-,„    hecn  established  as  law  and  as  fact,  we  shall  assume  alsii. 
''""'""""'  in  what  follows,  that  that  responsibility  lias  been  j)rove(l  to 

be  co-extensive  with  the  wrong;  that  is,  it  is  a  responsibility  for  tlie 
acts  of  the  Uonfederate  cruisers  in  <|uestion  to  the  extent  of  the  provis 
io.is  of  the  Treaty. 

1.  The  next  inijuiry  is  of  the  application  of  this  responsibility  to  tin 
facts,  and  the  induction  of  the  amount  of  damages  for  each  s[)('(ilii 
head  of  injury. 

We  submit  the  following  rules  of  judgment  in  this  respect: 

{ti)  When   the  demand  of  damage  is  founded  on  a  tort,  as  distin- 


..   1..X.  ^.^ ..... — .  .^ pj..  ....  .., ....  .«  ».».i,  ...V-  .......... 

>...rn.y  tn  „.  guished  froTi>  ix  contract,  severity  is  to  be  shown  toward  tlir 
'ilrr\'n ! bmlVi^im.Mb  wroug-docr,  and  the  losses  whi(!h  th<^  injured  parry  lias 
..loinort..  suft'ered  are  to  be  appreciated  with  liberality  for  the  [hu 

liose  of  indepinification. 

Infractions  of  contractt  are  to  be  anticipated,  in  view  of  the  too  pro 
valent  carelessness  of  men  in  this  respect,  tlu^  possibility  of  which  will, 
theretore,  have  been  foreseen  and  taken  into  consideration  by  the  other 
party. 

But  when  there  is  violent  wrong,  it  is  a  fact  beyo?id  prevision. 
which  of  course  occasions  more  perturbation  an<l  derangement  of  the 
affairs  of  the  injured  party,  and  which  has  a  characiter  of  perver.sit,v 
moie  grave  than  that  involved  in  the  mere  non-execution  of  a  coiitratt. 
Of  course,  reparation  should  be  exacted  witii  njore  rigor. 

(h)  When  the  damageclaii.ied  is  founded  on  a  tort,  the  culpable  animus 
of  the  wrongdoer  constitutes  an  ele'uent  of  the  (piestioii  of 
vvm^ Z"r ''•.!,''  .i""  damage.     In  such  cases  the  injured  party  is  entitled  to  <lnni 
""  "  "  '""""'       ages  beyond  the  amount  of  actual  loss,  in  the  nature  of  ox 
emplary  or  punitive  damages. 

The  doctrine  in  this  resi>ect,  as  understood  in  Great  Britain  and  the 
United  States,  is  stated  by  an  American  author  .as  lollows: 

to  tlio  jury, 
tlaut  cin  LiUaLauois  >f  (iijgravn- 


vion  whi 

.111(1  80  it 

that  in  c; 
I'lnictioii!- 
sioii  of  (i 
<l('liiiitioii 

On  til 

rhe  con: 

the  civi 

.Vmerici 

Tiie  il 

,'<)vernn 

''Jn  f 

fortune  i 

tonnenti 

nientioiK 

one  he  n 

.1  legal  t( 

(.(•)  l)h 

Mu\  the 

maiided, 

'luostion 

ii!vs  in  tl 

Til  is  di 

'^lioiu  da 

'ii,U'  that  1 

All  dai 

111  that  s(? 

■IS  to  the  1 

the  coiKse 

i<l)  But 

"sometime 

•'iiileavor 

'•ailing  t(i 

is  the  na 

settled  th 

"^neli  a  c( 

li'oni  tl'os 

bn ,'.;(( I 


"111  tlu'.so  actions  all  ciicnnistiinci'sof  iigfjravation  ro 
"Tho  iioct'.s,saiy  lesiiit  of  tlii»  rnlo  i.s  that  all  the  uttviu 


NATUKK    AND   AMOUNT    OF    DAMAGES. 


213 


^  distill- 

\-^r{\  tin 

ii'ty  lias 

he  pur 


too  \w 

h  will. 

le  otlu'i 


revision. 

of  till' 

■versity 
•oiitract. 

animus 
stioii  of 
to  dam 
re  of  I'x 

ami  till' 


f  u.'ffrav:!- 


rfl'itinii     !•' 
tdc    1  ti  I  II  r 


Tioti  wliicli  jjo  to  cliiiructcrizo  tlie  wrong  complainetl  of  may  bo  given  in  evidence  ; 
iiui  so  it  has  l)oen  held,  both  in  Knghmd  ami  in  this  country.  Indeed,  it  may  bo  said 
iliat  in  cases  of  tort,  where  no  fixed  and  ninforni  rido  of  dama";es  can  bo  declared,  the 
I'inictions  of  the  court  at  the  trial  of  the  cause  are  mainly  to  the  rectiption  and  exclu- 
sion of  evidtsn.'ie  when  ottered  either  bj'  way  of  aggravation  or  ndtigation,  and  to  a 
(U'linition  of  the  lino  between  direct  and  con.se(iuontial  damage."  ' 

Oil  tliis  point  there  is  unanimity  of  opinion  amon}»;  jurists,  both  of 
rlie  common  law,  as  in  Gre.at  Britain  and  the  United  States,  aiul  of 
tbe  civil  hnv,  us  in  the  <'Ountries  of  the  Ivomau  law  in  Eiuoi)e  and 
America.^ 

The  illustration  of  this  rule,  as  among  private  persons,  also  applies  to 
,'overninents. 

>'ln  fact,"  says  Mayne,  "if  any  other  rule  existed,  a  man  of  large 
t'oitune  might,  by  a  certain  outlay,  purchase  the  right  of  being  a  public 
tormentor,  lie  might  coi»y  the  examjde  of  the  young  Roman  noble 
mentioned  by  Gibbon,  who  used  to  run  along  the  Forum,  striking  every 
one  he  met  upon  the  cheek,  while  a  slav(!  followed  with  a  i)urse,  making 
.1  legal  tender  of  the  statutory  shilling.''' 

;(•)  Distinctions  arise  in  regard  to  the  relation  of  the  loss  or  damage 
and  the  act  of  injury,  by  reason  of  which  reparation  is  de- 
!iiiiii(led,  which  require  attention,  especially  in  view  of  the  < 
iiiostion  of  whether  direct  or  indirect  damages,  which  tig- 
iiivs  in  the  present  ca.se. 

This  distinction  is  raise<l  in  various  forms  of  expression,  the  party  ot 
uliom  damages  are  demanded  seeking  to  diminish  the  amount  by  alleg- 
iiii'  that  they  are  con.se<piential  or  remote,  or  iiulirect  or  not  immediate. 

All  damages  aic  claimed  as  a  conseciuence  of  the  nvA  of  wrong,  and 
111  that  sen.se  con.seipu'iitial,  and  therefore  di.scussioii  necessarily  ensues 
as  to  the  more  or  of  less  remoteness,  or  iiulirectness,  or  immediateness  of 
rlio  eoiKseipuMK^e. 

('/)  IJnt  each  of  the.se  conditions  .is,  of  it.self,  uncertain,  vague,  and 
vonietimes  incapable  of  precision,  which  has  led  to  the 
t'luleavor  to  state  the  doctrine  with  more  exactness,  as  u^m  V'Zu'J  "u.. 
ailing  for  the  inquiry  whether  the  damage  complained  of  "  '" 
is  the  natural  and  reasonable  result  of  the  wrong-tloer's  act ;  and  it  is 
settled  that  it  may  be  deemed  of  that  character  if  it  can  be  .shown  to  be 
such  a  consecpience  as,  in  the  ordinary  course  of  things,  would  follow 
tioiii  tiMtse  acts.'* 

Ill  *f;i('i,  every  cau.sc  has  a  series  of  effects;  or,  to  speak  more  accu- 
!.it- ' . .  r^i^"\'  ^'rt'ect  becomes  itself  a  cause  ;  and  so  on,  from  cause  to  ett'ect, 
''  •  )Mn;:o  ■  i)r  shorter  series  of  alternations  between  cau.se  and  ettect, 
aecvid;    "  w  the  particular  circumstances. 

(f)  'f  "A-'ivers  and  jurists  had  been  able  to  .say  that  all  danmges 
tor  wi  Ji^'  iionld  stop  at  the  Jirst  effect  of  the  cai  se,  the  definitio;)  of 
the  rule  would  be  less  vague  than  it  is  in  the  common  expression  ;  but 
•  veil  then  it  would  be  necessary  to  retlc  t  that  the  cause  does  not  neces- 
sarily operate  in  a  single  line  only,  but  fro'juently  in  several  lines:  it 
luay  operate  in  diverse  directions,  and  produce  many  innnediate  and 
•lireet  effects,  as  by  radiatiou  from  the  common  (icntre  of  the  causa 
<«(M«n.v,  like  a  stone  ca'-^t  into  water. 

''f  cour.se,  the  solution  of  the  i)roblem  becomes  more  and  more  dif 
•  f  in  proportum  to  the  multii)licity  of  these  different  lines  of  action 
•u  wii.      Lt'  primitive  causes  operate  to  produce  effcts,  which  are  them- 

S  (igwick  on  tlio  Afcasuro  of  Damages,  p,  528. 

^•Hirdat.  Traite  de  la  Kesimnsabilit/',  vom.  i,  i>.  97  ;  Sedgwick  on  Damages,  ch.xviii. 
Mayne  on  Dannige.s, }»,  14.  '  Ibid.,  p   I."). 


*s 


214 


AKGL'MENT    OF    THE    UNITED    STATES. 


mS 

w 

selves  new  causes,  and  all  of  them  the  natural,  not  to  say  necessai  \ , 
consequences  of  the  one  defunte  act  of  wrong. 

(/)  As  a  given  event  may  be,  and  often  is,  produced  by  a  plurality  ct 
causes  working  together,  so  may  a  wrong  be  the  effect  of  the  actioii  ot 
two  or  more  persons.  In  such  case,  the  injured  party  has  right  of  u-- 
dress  against  all  and  each  of  the  wiong-doers,  although  neither  of  tlu'in 
may  be  morally  accountable  for  all  the  injury,  and  some  one  of  thciii 
may  have  contributed  to  the  injury  in  a  comparatively  small  degrot'. 
IJut  it  is  no  defense  for  any  of  the  wrong-doers  to  say,  "  i  di«l  but 
(cooperate  with  others,  and  that  in  a  coini)aratively  small  degree,  tn 
inflict  the  injuries."' 

Whether  the  ettect  complaiiu'd  of  be  or  not  directly  connected  wirii 
the  cause,  whether  it  be  proximate  or  remote,  whetlier  the  reputed  in 
jury  be  or  not  the  natural  and  logical  consequence  of  the  alleged  act  oi 
wrong,  all  these  are  in  part  <piestions  of  fact,  which  cannot  be  redi'cii] 
to  absolute  ])recision,  but  of  wliich  the  competent  tribunal  must  Jiidsv 

Thus,  in  the  examjde  so  much  discussed  by  Avriters  on  the  ci\il  hw. 
su])pose  that  the  buildings,  cattle,  and  horses  of  a  cultivator  aro  do 
stroycd  by  the  malicious  or  culpable  negligence  of  another,  so  as  tn 
establish  the  rig','  of  indemnity  against  the  author  of  the  contlagratioii. 
how  far  shall  the   i  d  of  damages  extend  :' 

lieparation  must  .  ist  comprehend  all  which  it  costs  to  rebuild  tin 
I'arm-buildings  and  U:-  |)rocure  the  same  number  and  <iuality  of  catth' 
and  horses,  and  the  personal  inconvenience  and  derangement  caused '.ty 
the  conflagration. 

n>ut  the  destruction  of  the  buildings  and  cattU'  has  interrni)ted  ciil 
tivation  and.  deprived  the  ])roprietor  of  his  expected  crop.  Hball  tli!>. 
too,  be  included  in  the  indemnity  .' 

And  the  interruption  of  (;ulture  and  the  losses  incidental  tlien  re 
embarriiss  the  ]»roprictor,  so  that,  in  tiie  course  of  the  expenditure  to 
which  he  is  subjected  in  the  purchase  of  materials  of  construction  and 
cattle  and  horses,  he  becomes  indebted :  the  failure  of  Ins  crop  de]irivt's 
him  of  the  expected  means  of  payment ;  his  creditors  come  upon  him 
and  seize  and  sell  whatever  he  ii.as,  and  thus  he  beconu^s  ruined  aud 
reduced  to  absolute  destitution. 

All  these  disasters  are  the  manifest  consequence  and  efl'ect  of  tin- 
acts  of  the  incendiary.  Is  J.e  incendiary  responsible  for  them  all  i  <'i 
is  he  oidy  responsible  for  the  value  of  the  things  consumed  '?  Are  tlie 
subsequent  losses,  which  are  confessedly  the  natural  consequences  of 
the  act  of  wrong,  so  remote  or  indirect  as  to  relieve  the  incendiary  ot 
responsility  therefor? 

The  law  does  not  require  chat  the  damage  recoverable  shall  be  tbe 
necessary  effect  of  the  cause, — that  is,  an  effect  impossible  to  prevent :  it 
does  not  require  that  the  damage  recoverable  shall  be  the  first  effect  ol' 
the  cause, — but  only  that  the  damage  shall  have  efficient  cause  in  the  act 
of  wrong. 

And  the  party  injured  is  not  to  be  deprived  of  redress,  if  he  failed  to 
employ  extraordinary  means  to  arrest  the  progress  of  his  losses  ami 
diminish  tl  'ir  amount,  provided  he  took  the  ordinary  steps  of  prudenw 
to  that  end.' 

All  these,  we  repeat,  are  considerations  of  fact,  which  the  competent 
tribunal  Judges  according  to  the  circumstances  and  which  do  not  admit 
of  absolute  legal  conclusions  of  law. 

{h)  Damages,  reparation,  indemnity,  all  these  are  terms  to  descritf* 


Souidat,  De  la  Respousubiliti^,  toi?i.  i,  p.  t)6. 


NATIUK    AM)    AMOUNT    Ol"    DAMAGES. 


215 


run. IV 


\|.Ml 


V-  1- 
n  1''*. 


rhe  same  tliiiif'.  Tndeninity  includes  both  lucrum  cesstoin 
;iii(l  (lamuum  onn-f/ens.  It  includes  also  mora!  as  well  as 
iiuiteiial  damage.'     And  it  involves  injury  to  persons  as  well  as  things. 

But,  in  all  cases,  the  question  of  the  amount  of  damage  and  its  equiv- 
alent in  pecuniary  reparation  becomes  one  of  fact  for  the  wi.thr  ...  n„t 
consideration  and  the  equitable  determination  of  tluM-om-  >  i" •"'"•' "" 
petent  tribunal,  as  illustrated  by  the  numerous  cases,  especially  at  com- 
mon hiw,  in  which  revision  of  sentence  is  called  for  on  account  of  erro- 
neous verdicts  of  damage. 

1'.  We  proceed  to  ai)])ly  these  considerations  to  the  several  heads  of 
injury  to  tlie  United  States  growing  out  of  the  acts  of  the 
('onfederate  cruisers  siih  life,  and  tlu>  M>nse(iuent  damages 
line  by  Great  lU-itain,  discussing  these  i)oints  in  the  order  in  wliich 
rliey  appear  in  the  American  Cas(s 

(<{)  Tlie  United  States  claim  indemnity  for  actual  pro/trrli/  of  the 
(iovernnient  in  vessels  destroyed,  and  for  iMmediate  /xr- 
sinuil  injur Ic.'i  to  the  otVicers  and  crews,  cau.sed  by  the  Uon- 
it'derate  cruisers,  the  responsibility  for  whose  acts  we  have  in  i>revi(ms 
(tiscassion  attached  to  (Ireat  IJritain. 

In  our  enunu'ratiou  of  the  i)articnlar  facts,  we  have  considered  the 
case  of  each  <-ruiser  in  respe(;t  of  which  we  (-hiim  ;  we  have  j)roeeede<l 
locoimect  each  of  thos(>  cruisers  with  the  Ibitish  (lovernjiient,so  as,  in 
.iiu'  opinion,  to  establish  its  failure  to  tnltill  the  Kules  t»f  the  Treaty  in 
lejictrd  to  the  several  cruisers;  and  we  have  treated  fully  the  (luestion 
nf  diligence  as  to  each  of  these  eruiseis,  as  requiicd  l)v  the  Trt-aty 
liiiles.' 

[b)  The  i)roperty  destroyed  consisted,  lirst,  of  vessels 
apparel,  ecpiipment,  aiul  armament,  Ix'longing  to  the  (lov- 
crniaent  of  the  Uniteil  States. 

Statements  in  detail  of  tiie  U)s?ies  of  this  class,  otlicially  certitied 
either  by  the  Secretarx  i.i  the  Treasury  or  the  Secn'taiy  of  the  Navy, 
according  as  the  vessels  appertained  to  one  oi-  the  other  branch  of  the 
iniblic  service,  api)ear  in  the  appendix  to  tlu^  Anuuican  Case. 

There  is  no  «pu^stion  here  of  iiulirecf  onlirect  damages,  notwithstand- 
iiifl  some  vague  suggestions  to  that  effect  in  the   'Jritish  Counter  Case. 

If  a  ship  destroyed  at  sea  is  not  a  case  of  direct  loss,  then  there  is  no 
sense  in  language  and  no  reason  in  law. 

What  amount  of  damage  is  due  in  such  a  case  '!  Surely  the  value  of 
the  thing  destroyed  is  the  minimum  of  such  amount,  even  throwing  out 
of  question  the  element  of  wrong  and  looking  at  it  as  one  of  simple 
negligence. 

Uow  shall  the  value  of  the  thing  destroyed  be  ascertained  '  W<' 
present  ofliicial  certificates  of  the  value,  and  mc  confidently  submit,  as 
between  governments,  that  such  otlicial  statements  are  to  be  received 
as  fact.  The  British  Counter  Case  undertakes  to  contradict  such  otticial 
certificates  by  njeans  of  opinions  of  the  British  Admiralty.  We  reject 
all  such  opinions.  We  refuse  to  recognize  them  as  available  in  any 
sense  to  detrtict  from  the  authentic  proof  contained  in  tiie  authoritative 
tlocunients  ottered  by  the  American  Government. 

(o)  The  United  States  claim  indemnity  in  like  manner  for  vessels  and 
other  actual  property   of  private  citizens  of  the  Uuite<l 
States  destroyed,  and  for  immediate  ])er8onal  injuries  to  the  H.r..y.'!i  «n.rnlur',e. 
officers  and  crews,  caused  by  Confederate  (jruisers,  the  re- 
"<ponsibility  of  whose  acts  we  have,  as  we  think,  already 
attached  to  the  British  Government. 


'Is,   with  their 

\s  1..  |.i..|...'v  ..I 
•In-  1'mii,-.i  .-\il.-^ 
.1. -Inn.',!. 


7...I1.1    111    tl.. 

Sl.ltHB. 


I-IUI...I 


'  Sonidat,  De  la  RsHpoiisabilitt',  toiii.  i,  p.  22A. 


« 


216 


ARGUMENT    OF    THE    IMTED    STATES. 


Tlie  nature  of  these  leclamations  is  exulsiined  in  the  American  Case 
and  in  the  appendix  thereto,  especially  in  the  seventh  volnme,  and  in 
supplementary  documents  there  will  be  found  detailed  statements,  made 
on  oath,  with  valuations  and  other  particulars,  for  the  information  of 
the  Tribunal. 

The  British  Counter  Case  uYidertakes  to  control  the  facts  thus  set 
forth,  and  to  do  so  bj-  means  of  cxtimafcs,  made  by  IJritish  subjects  at 
the  request  of  the  British  Government. 

The  Counsel  of  the  United  States  respectfully  submit  that  the  claims 
of  the  United  States  in  this  behalf,  vouched  as  they  are,  cannot  be  met 
by  any  such  conjectural  estimates  as  are  put  in  by  the  JJritish  Govern- 
ment. 

The  United  States,  in  tliose  documents,  have  exhibited  the  value  of 
the  property  captured  or  destroyed  as  the  primary  element  and  lowest 
measure  of  dama<»o  and  of  consetpient  reparation.  Justice,  we  conceive, 
and  the  universal  ])ractiee  of  nations,  demand  thus  much,  at  least,  of 
indemnity  for  wronja^. 

{<!)  The  ITnited  States  also  claim  payment  of  the  expenses  incurred 
by  the  Government  in  pursuit  of  the  Confederate  cruisers  in 
i,uV,'',',V'"u'i 'n!"  question  ;  of  which  exjtenses  an  account  is  jiiven  under  tliu 
authority  of  the  proper  departuient  of  the  United  States. 

In  this  case,  as  in  that  of  public;  vessels  cai)tured,  we  deny  that  t^i- 
autlieiitic  accounts  of  the  American  (Jovernment  can  be  controlled,  as 
the  British  Counter  Case  undertakes  to  do,  by  conjectural  estimates  of 
oHiccrs  of  the  British  Government. 

We  conceive  this  damage  to  come  within  the  most  rigorous  rules  of 
direct  damage. 

Indeed,  Mr.  Gladstone  himself,  in  specifying  the  contents  of  the  two 
classes  of  damage,  direct  and  indirect,  as  he  regards  them,  places  the 
cost  of  pursuit  in  the  lirst  category.' 

We  disregard  the  suggestion,  olfered  in  the  Counter  Case  of  the  Brit 
ish  Government,  that  the  United  States  are  in  fault  for  not  having 
sooner  captured  the  Alabama  and  J'lorida,  or  having  failed  to  capture 
other  cruisers  of  the  Confederates.  The  injured  party,  as  we  have  already 
argued,  is  not  heh'  to  take  extraordinary  measures  to  counteract  tlic 
Avrongful  acts  of  the  injuring  party,  but  only  ordinary  measures.  Tlie 
evidence  in  the  American  Case  and  Counter  Case  shows  that  the  United 
States  did  make  great  efforts  and  a  diversion  of  forces  for  suppression  of 
the  liebellion,  at  a  large  expense,  for  the  pursuit  of  the  Confederate 
cruisers  in  question;  but  if  they  had  made  none  the  omission  could  not 
be  justly  alleged  in  defense  by  Great  Britain.  This  very  objection  on 
the  part  of  the  British  Government  confirms  our  claim  of  indemnity  in 
this  behalf.  If  it  was  the  duty  of  the  United  States  to  pursue  a  Confed 
erate  cruiser,  this  duty  being  im])osed  upon  iis  by  the  culpable  conde^ 
of  the  British  Government,  surely  we  have  a  perfect  right  to  call  on 
(heat  Britain  to  pay  the  expenses  of  such  pursuit,  in  which  we  were 
only  protecting  ourselves  against  the  effects  of  the  delinciuencies  of 
the  British  Government. 

The  British  Counter  Case  argues  at  some  length  against  all  claims  on 
the  i)art  of  the  United  States  on  account  of  the  Confederate  cruisers. 
even  conceding  that  by  failure  to  use  due  diligence  Great  Britain  sliiiU 
have  incurred  the  culpability  contemplated  by  the  Treaty  Ilules. 

To  much  of  this  argument  we  have  already  replied,  either  in  the  state- 
ment of  general  propositions  or  in  particular  commentary.  We  pro 
ceed  to  make  other  appropriate  comments  thereon. 

'  See  Mr.  Gliutstone's  Hpeocli,  Luuiluu  Tiiiic8,  February  7,  1872. 


NATURE    AND    AMOUNT    OF    DAMAGES. 


217 


\n  reading  tliis  denial  iu  the  British  Counter  Case  of  any  responsibil- 
ity on  the  part  of  Great  Britain,  notwithstanding?  there  should  be  estab- 
lisiied  lefjal  responsibility,  we  couUl  not  but  reflect  on  what  has  been 
iuhnitted  iu  this  respe^ct  by  most  intelligent  members  of  Parliament, 
including  successive  Cabinet  Minist<»r8. 

]\Ir.  Cobden's  memorable  remarks  on  this  point,  while  the  occurrences 
were  jmssing,  are  «juoted  iu  the  American  Case.  We  requoteonly  his 
statement  us  to  actual  losses  by  capture  as  follows : 

•'  Yon  liavc  born  ojuryiiifr  on  liostilitioH  f'ntni  i\\vso  shores  against  tli«  ])poi)lo  of  tlio 
I'liitt'd  States,  and  liavo  Ihhmi  inliietinj;  an  anionnt  of  dainaj^ts  <»n  that  conntiy  j^reater 
tlian  w(tnhl  1)«  produced  l>y  nniny  ordinary  wars.  It  is  estimated  that  the  h)ss  sustained 
hy  file  ciiptnre  and  Itornin-j;  of  American  vessels  lias  been  about  !Siir),O((0,l)0O,  or  n«!arly 
♦.■;V""*.WO  sterlinjf.  IJut  that  is  a  small  part  of  the  injury  which  has  been  intlicted  on 
till'  American  marin(\."' 

That  was  in  1804.  Several  years  afterward,  when  there  had  been  time 
tor  reflection,  Lord  Stanley  said: 

I  hare  never  concailcd  mi/ opinion  that  llii  Amerieiiu  elaimniifx,  or  xome  of  them  at  leasl. 
<''  iUr  tli(  referenee  proposed  hij  »«,  ^rere  reri/  lihelii  to  make  out  their  eauv  and  f/et  their  money. 
r«i  lis  the  money  jiart  of  the  alfair  is  iiiapinecialily  small,  esi>eeiiilly  as  we  have  on  our 
>i(l(' ciiiiiiter  claims,  which,  if  only  a  small  ]iortioii  of  them  hold  water, — and  you  can 
iievrr  tell  belbrehand  how  these  matters  will  turn  <iiit,— will  reach  to  a  considerable 
ainoiiiit.  and  form  a  by  no  means  iiiiiiii)>ortant  set-otf  to  the  claims  jireferred  aj^aiiist 
us.  liiit,  I  think,  if  iiiiitteis  were  fairly  adjusted,  even  if  the  decision  went  aj^aiiist  ns. 
vvf  should  not  lie  disjioscd  to  •:;rud;;e  tlic^  piiymciit.  Thi  i.rpenxe  ironld  lie  <iuite  worth  in- 
fiirriiKI,  if  only  in  order  to  uliluin  an  anthorilatire  deeixion  ax  to  the  poxilioii  of  uiiitralx  in 
I'niiire  icarx.  - 

^Ir.  Forster  said,  in  the  same  debate  : 

■  Thi'V  should  further  consider  whether  arbitration  was  the  nieansof  settlluj;  the  mat- 
M.  'J'lemtsndoiiH  injury  had  lieeii  inllicted  on  Auierieaii  citi/eiis  by  means  of  the  at- 
Tiicks  u|)ou  their  shi|is,  and  if  the  present  misuiiderstandiiii;  was  not  settled  upon  a 
|iriiici)il(^  which  would  carry  with  it  tlu^  fcelinj;  and  moral  sense  of  both  countries, 
llien*  Wiis  reason  to  fear  that  whenever  we  euffaycd  in  war  we  would  sillier  in  thesauu 
\v;ty." 

Earl  Ru.ssell  has  himself  said,  i4i  a  i)as,sage  hereinbefore  quoted  from 

tile  preface  to  the  edition  of  his  speeches  : 

•  (iieat  ]]ritainmij;ht  fairly  jriant  a  sum  c(|uivalent  to  the  amonntof  losses  sustained 
liy  the  captures  of  the  Alabama." 

Will  strict  Juridicial  inquiry  into  the  law  and  facts  sustain  theseopin- 
ionsof  Lord  Stanley,  Mr.  Forster,  and  Lord  Kussell  i?    AVe  think  it  will. 

First.  The  Treaty  itself  seems  to  require  an  award  of  i)ecuniary  rei>ar- 

atiou.     It  stipulates  that — 

In  ciise  the  Tribunal  tind  that  Great  Britain  has  failed  to  lullill  any  duty  or  duties  as 
iitoresaid,  it  may,  if  it,  thinks  proper,  proceed  to  award  a  sum  iu  <j;ross  to  be  paid  by 
(ireat  Ihitain  to  the  United  States  for  alHhe  claims  referred  to  it,  (Article  VII.)  It 
further  stipulates  that  in  case  the  Tribunal  linds  that  Great  Britain  has  failed  to  fulfill 
any  duty  or  duties  as  aforesaid,  and  does  not  award  a  sum  in  gross,  the  High  Contract- 
iiij;  I'arties  agree  that  a  ]$oard  of  Assessors  shall  be  appointed  to  .iscertain  and  deter- 
mine what  claims  are  valid,  and  what  amount  or  amounts  shall  be  paid  by  Great 
Hritain  to  the  United  States,  on  account  of  the  liability  ari.sing  from  .snch  failure,  as  to 
'•a<li  vessel,  accortling  to  the  extent  of  such  lialiility  as  decided  by  the  Arbitrators. 
I  Article  X.) 

All  these  expressions,  we  submit,  imply  an  award  of  substantial 
•iainages  and  satisfaction  of  all  losses  growing  out  of  the  acts  of  the 
Confederate  cruisers,  provided  the  finding  of  the  Tribunal,  on  the  qnos- 
tion  of  fulfillment  or  non-fulfillment  of  duty,  be  adverse  to  Great  Britain. 

We  dismiss,  therefore,  the  question  whether  or  not  a  conviction  of 
guilty  conduct  is  to  go  without  any  responsibility  in  damages,  .is  argued 
by  the  liritish  Counter  Case,  and  we  do  not  i^erceive  any  legal  force  iu 
tlie  arguments  which  the  Counter  Case  adduces  to  this  effect. 


i 


B!f 


Haii.sard,  third  series,  vol.  clxxv,  p.  41M> ;  App.  to  American  Case,  vol.  v,  p.  t)0\.K 
Hansard,  vol.  cxc,  p.  ll.'JO ;  App.  to  American  Case,  vol.  v,  p.  708. 


218 


AlfCilMKNT    OF    TMK    IN'ITKD    STATKS. 


'(■  W 


The  captures,  it  is  said,  were  made  by  eitizeiis  of  the  United  Stiit(  <-. 
Of  what  avail  here  is  that  fact  ?  Does  the  British  (rovermneiit  intend  to 
be  understood  as  niaintaining  tliat  all  violations  of  neutrality  <)ti  behaltdt 
Rebels  are  taken  out  of  the  ftiasp  of  the  law  of  nations  ?  Is  that  to  be 
lield  as  the  deliberate  thons'htof  (Ireat  IJritain,  the  mistress  of  so  niaiix 
millions  of  discontented  inliabitants  of  conquered  States  ? 

Next,  it  is  said  that  the  United  States  have  <;ondoned  till- 
M.  nt'i'y'th"'",™^^  wrongs  done  to  them  by  their  Itebels,  and  ''  that  they  Iiavc 
been  re-acbnitted  to  their  former  full  participation  in  tlic 
rights  and  privileges  of  the  Federal  Constitution.'" 

lEow  does  (Jrc'it  JJritain  know  that,  what  right  has  slie  to  know  it.  in 
a  matter  of  Treaty  obligations  between  the  two  (loverninents  !  If  tlir 
consideration  is  of  anj-  force  whatever,  it  strikes  at  the  (luestion  whetlici 
Great  Jiritain  is  responsible  to  the  llnit«'d  States  in  case  she  did.  oi 
omitted  to  do,  any  of  the  actions  forbidden  or  commanded  by  the  lliilcs 
of  the  Treaty  of  Washington. 

The  Treaty  d(»'S  not  provide  by  way  of  exception  that  if  sncii  iicrs 
iloue  or  committed  in  violation  of  neutral  duty  are  done  or  omittcil 
on  behalf  of  Kebels,  they  shall  involve  no  responsibility  to  the  le.:L;iti- 
nmte  sovereign,  or  that  such  responsibihty  shall  be  measured  by  tlic 
more  or  less  severity  with  which  that  sovereign  shall  see  tit  to  trt-iiT 
his  Kebels.  On  the  contrary,  tlie  llulesare  absolute  in  their  t«M'ms.  and 
adoi>ted  with  specific  reference  to  the  (juestions  of  neutrality  violatcii 
to  tlu)  advantage  of  Itebels  and  the  disadvantage  of  their  sovereign. 

(heat  IJritain  can  set  u[>  no  such  defense.  It  involves  c(»nsidcrations 
which  she  ought  to  have  reH(H'ted  on  when  she  hastened  to  raise  tlic 
Confederates  into  the  status  of  international  belligerents.  In  so  doiiiu 
she  gave  to  them  the  means  of  doing  injury  to  their  sovi'reign,  it  is 
true,  but  for  which  that  sovereign  could  ami  did  take  redress  against 
them,  when  he  saw  tit,  by  exercise:  of  the  rights  of  war  as  well  as  tlx- 
rights  of  sovereignty. 

But  (Ireat  Britain,  by  the  course  of  i^olicy  she  a(loi>ted,  chose  a  con- 
dition, iu  which,  whatever  wrongs  she  or  her  subjects  might  siitUi 
at  the  hands  of  the  Confederates,  she  had  no  jiossible  recours«'.  eitlu  i 
against  them  or  their  sovereign;  but  in  which  she  herself  was  respon- 
sible to  that  soveriMgn  for  whatever  she  might  do  in  aid  of  such  rebels. 
in  violation  of  the  law  of  nations  or  of  Treaty. 

Great  Britain  placed  herself  in  that  condition  of  her  own  free  eltf 
tion,  and  against  the  will  of  the  United  States.  She  must  tak<'  tlii' 
consequences. 

Her  acts  of  actual  or  constructive  complicity  with  the  Confederates 
gave  to  the  United  States  the  same  right  of  war  against  her  as  in  situ 
liar  circumstances  she  asserted  against  the  Netherlands. 

We,  the   United   States,  holding  those   rights  of  war,  have  rclin 
n,..  ari.itrution  qulshcd  thcm  to  accept  instead  the  arbitration  of  this  Tri- 
MuhiX'-orrHm^^  banal.    And  the  Arbitration  substitutes  correlative  lesriil 
Htionhj  war.         damages  in  the  place  of  the  right  of  war. 

This  proposition  is  unequivocally  admitted  in  the  Counter  Case  as 
follows : 

Her  Majesty's  Goverunient  readily  admits  the  general  principle  that,  where  an  injury 
hus  been  done  by  one  nation  to  anotlier,  a  chiiiu  for  some  appropriate 
iJthK^tHiivh'couI"  redress  arises,  and  that  it  is  on  a)l  accounts  desir<ible  that  this  right 
Ur  c««i."  "^ '  """  should  be  satished  by  amicable  reparation,  instead  of  being  enforced  by 
war.  All  civil  society  reposes  on  this  principle,  or  on  a  principle  anal- 
ogous to  this;  the  society  of  nations,  us  well  as  that  Avhich  unites  the  individiiai 
members  of  each  particular  commonwealth.' 

'Page  130. 


NATl  Ri:    AND    AMOLNT    OF    DAMAiJKS. 


219 


Tlu'  priiu'iph'  beiiij;'  tlius  admittetl,  no  ciisuistiy  can  serve  to  prevent 
its  ai)i)Iiention  to  the  present  clainia  of  the  TTnited  States. 

That,  as  the  Connter  Case  sufj^ests,  th(^  instrninents  of  the  injury 
(lone  were  the  eruisers  and  their  officers  and  crews,  is  immaterial  to  the 
(|uostion.  Jiesponsibility  for  the  acts  of  those  cruisers,  by  the  very 
terms  of  the  Treaty,  is  imi)()se<l  on  (Ireat  llritain,  if  she  be  found  in 
tiuilt  accor<linj>-  to  the  ajjjreed  ]{ules. 

If  it  were  otherwise,  then  no  res[)onsibility  could  ever  «levoIve  on  any 
Movernment  for  breaches  of  neutrality  produced  by  its  nejjlect ;  for  the 
ilovernment  is  iu)t  /»  /7.v  oini  pevson  the  actual  cruiser  which  siidvs  and 
hums;  it  is,  however,  the  construiftive  cai»tor  by  the  spirit  and  the 
lotter  of  the  Treaty. 

The  British  Counter  Case  arjjues  that  Great  llritain  ou<;hl  not  to  be  held 
responsible  for  all  the  acts  of  the  cruisers  during-  the  entire  voyage  of 
tacli,  becanse  they  enjoyt'd  hospitality  in  ports  of  other  countries.  lJnf(u- 
tiuiately  for  the  argument,  (Ireat  ]iritain  never  did  anythiu^  to  stop  the 
muisers,  as  she  did  in  the  affair  of  Terceira ;  she  ( ontinue<l  to  allow 
ihem  to  obtain  suiii)lies  in  her  i)orts  to  the  last,  without  which  they 
(ould  not  have  kept  the  seas;  and  althougli  with  knowledge  of  the 
positive  guilt  of  the  cruisers,  by  reason  of  tlieir  violation  of  her  laws, 
she  persisted  in  treating  them  as  legitimate  cruisers,  when  she  might 
and  slutuld  have  arrested  them  Avhenever  they  entered  into  her  Jurisdic- 
tion, or  hav(^  forbidden  them  tore-enter  and  practically  ontlawed  them, 
IS  r>ra/il  did.  To  i)unish  the  lesser  act  of  abusing  the  hospitality  of  the 
Knii)ire.  JJut  the  neglect  of  duty  on  the  part  of  Great  IJritain  continned 
as  to  most,  if  not  all,  the  cruisers  of  the  Confederates  to  the  very  end. 

Tiie  Counter  Case  argues  that  losses  and  specillc  (captures,  actually 
xuffered  by  the  United  States,  are  not  to  be  imlemnilied,  because  the 
liability  of  Great  llritain  disappears  "among  the  multitude  of  causes, 
liositive  or  negative,  direct  or  indirect,  distant  or  obscure,  which  com- 
bine to  give  success  to  one  belligejent  or  the  other.''  If  this  argument 
were  adduced  to  the  question  of  the  responsibility  of  Great  IJritain  to 
the  United  States  for  the  prolongation  of  the  Rebellion,  we  coidd  com- 
I»reliend  its  meaning  without  admitting  its  application  or  force.  ]>ut  as 
iiltplied  to  actual  cai)tures,  and  the  loss  thereby  produced,  the  argument 
seems  to  be  destitnte  of  reason.  On  such  premises  no  belligerent  could 
be  held  to  restitution  of  a  wrongful  capture,  and  no  neutral  could  ever 
be  held  responsible  toward  either  belligerent;  for  a  "multitude"  of 
secondary  facts  always  enter  into  every  discussion  of  responsibility  for 
wrong,  anil  especially  for  wrongs  in  time  of  war.  The  common  sense  of 
inanknul  oversteps  all  such  immaterial  incidents,  and  goes  direct  to  the 
prime  nnthor  of  the  wrong;  the  Government  which  wrongfully  did,  or 
wrongfully  permitted,  the  act  impugned,  the  expedition  from  her  ports 
of  the  "tloating  fortress,"  aa  the  Counter  Case  properly  calls  the  wrong- 
doing instrument  of  the  guilty  Government. 

Claims  like  the  present,  says  the  Counter  Case,  have  rarely  been  made, 
and,  as  the  British  Government  thinks,  never  conceded  or  recognized. 

It  might  suffice  to  reply  that  no  such  case,  on  so  large  a  scale,  has 
ever  occurred,  except  in  the  controversy  between  Great  Britain  and 
France  in  1776,  and  then  Great  Britain  declared  war.  But  the  precise 
•luestiou  arose  and  was  duly  adjusted  between  the  United  States  and 
Spain.  And  the  relations  of  Governments  do  not  depend  on  mere  pre- 
cedent, but  still  more  on  right. 

The  Counter  Case  deprecatingly  doubts  whether  "the  greatness  of 
the  loss  is  to  be  regarded  as  furnishing  the  just  measure  of  reparation 
without  regard  to  the  venial  character  of  the  default." 


I 


K''^- 


my. 


1-7^ 


:  .     ■ 

'j|ri,il;& 

'■>; 

'f'''^t' 

.!«,.. 

|;| 

-/^•- 

^E'^Tti 

wi'i^ 

..;;   ■ 

■Jii'^ 

■m-  ^ 

,j^ 

•220 


AKUUMKNT    OF    THE    rMTEJ)    STATES. 


We  ilcuy  that  tliore  is  luno  any  actual  «|uestion  of  (lefault  of  "  venial 
character."  Tlie  defaults  charged,  and,  as  we  think,  the  defaidts  proved, 
are  j^rave,  serious,  capital.  And  we  deny  that  there  is  any  pitxsiblc  <ju(\s 
tion  of  the  "venial  cliaraeter  of  tike  defaults,"  or  that  the  loss  can  he 
measured  by  any  such  consideration.  Punishment  by  penal  laws  iiiuy 
be  graduated  in  this  way,  according  to  the  greater  or  less  <legree  u\ 
guilt;  but  indemnity  for  wrong  cannot  be:  if  you  destroy  my  ship,  ni\ 
house,  or  my  horse,  by  culpable  carelessness,  it  is  no  answer  to  say  that 
you  might  have  been  niore  careless — nay,  that  you  might  'nive  acted 
Avith  deliberate  malice. 

If  there  be  responsible  wrong,  whether  it  be  the  greatest  imssihU' 
I .winntv  ,\„mu\  wroug,  or  a  degree  less  than  tlie  greatest  possible,  stiH  the 
"""""""■  indemnity  follows  as  a  legitimate  and   just  conse(iueii('e. 

Such,  indeed,  is  the  tenor  of  the  Treaty,  which  attaches  responsibiUty 
to  mere  want  of  "due  diligen<;e,"  and  <loes  not  require  that  (Jireat 
liritaiii  should  have  been  guilty  of  the  utmost  conceivable  degree  ot 
willful  negligence  which  could  by  possibihty  be  committed  by  any 
Government. 

(./■)  Tlie  Case  of  the  United  States  desires  the  Tribunal  to  award  a 

A  v„.i  ,.,„,.„„„  ^'n»  in  gross  in  reparation  of  the  losses  t!omplaiiuul  of;  and 

"""  the  Counsel   request  this,  assuming  the  Tribunal  shall  be 

lully  satislied  that  the  said  losses  are  ]»ro])erly  i)roved  indetaii,  an<l  that 

the  sum  total  thereof,  as  claimed,  is  due  by  Great  Britain. 

JnthatcontingencytheCounsel  assume  that  interest  will  be  awarded  by 

„  ,i„ I  „„i,„„  the  Tribunal  as  an  element  of  the  ilamage.    We  conceive  this 

""""'  to  be  conformable  to  public  law,  and  (<»  b{^  recpiired  by  para 

mount  considerations  of  equity  and  Justice. 

Numerous  examples  of  this  occur  in  matters  of  international  valua 
ti(m  and  indemnity. 

Thus,  on  a  recent  occasion,  in  the  disposition   by  Sir  Edward  Thorn 

,i,p  ,„ „„,  ton,  JJritish  JMinister  at  Washington,  as  umpire,  of  a  claim 

'"'"'•  on  the  part  of  the  United  States  against  IJrazil,  the  umpire 

decided  that  the  claimants  were  entitled  to  interest  by  the  same  rij,dit 
which  entitled  them  to  reparation."  And  the  interest  allowed  in  this 
case  was  $45,077,  nearly  half  of  the  entire  award,  ($100,740.) 

So  in  the  case  of  an  award  of  damages  by  the  Emperor  of  Itussia  in 
a  claim  of  the  United  States  against  Great  Britain,  uudei 
the  Treaty  of  Ghent,  additional  damages  were  awarded  in 
the  nature  of  damages  from  the  time  when  the  iiulemnity  was  due.-  In 
that  case  Mr.  Wirt  holds  that,  according  to  the  usage  of  nations,  inter 
est  is  due  on  international  transactions. 

In  like  manner.  Sir  John  Nicholl,  British  Commissioner  in  the  adjust 
A»nr.i  u>ui.r  tho  Hieut  of  dauiagc  between  the  United  States   and   Great 
.i„y,m.tj,  Britain,  under  the  Jay  Treaty,  awards  interest,  and  says: 

To  re-iniburso  to  claim.iiits  the  orijjiual  cost  of  theii'  property,  ami  all  the  expenses 
they  have  actually  incurred,  togrther  with  interest  on  the  whole  amount,  would,  I  think,  bo 
a  just  and  adeijuate  coinpeusation.  This,  I  believe,  is  the  measure  of  couipcnsivtioii 
usually  made  by  all  belligerent  nations  for  losses,  costs,  and  damages  occasioned  by 
illegal  captures.-' 

(<jf)  If  the  Arbitrators  are  not  satisfied  with  the  proofs  presented  by 
ro„ti„«n„t  rcfrr.  the  United  States,  and  entertain  doubt  as  to  the  sums  to  be 
^»ce  to  a,»e,»or».     awarded  in  each  case  of  private  loss  occasioned  by  Confed- 
erate cruisers,  as  to  which  the  responsibility  of  the  British  Government 

'  Indemnity  case  of  ship  Canada,  United  States  Documents,  December  15,  1870,  p. 
153. 
'^  Opinion  of  Attorney-General  of  the  United  States,  vol  ii,  p.  20. 
'  Ibid.,  p.  31.    See  also  Story,  Conflicts  of  Laws,  j  307. 


Avvjirti    ilmitT    til 

Ti'Mly   Ml'   (illlMlt. 


NATl'RE    ANI>    AMOUNT    OF    DAMAGES. 


221 


uttadjes  according  to  tlie  lliilcs  of  the  Treaty,  tlien  the  Coiiiisel  of  tlie 
Cnitcd  States  respectfully  snlmiit  that  it  may  be  the  duty  of  the  Tribunal, 
after  diuliiig  the  fact  of  the  fault  of  (Ireat  lUitain  in  the  premises,  to  refer 
flic  assessment  of  the  damages  to  the  Assessors  provided  for  by  Article 
\  of  the  Treaty,  with  such  instructions  as  to  the  extent  of  the  liability 
as  the  Tribunal  shall  see  tit  to  give  to  such  Assessors. 

We  cannot  admit  that  (Ireat  liritain  shall  appoint  cv-imrtv  Assessors 
to  control  the  statements  and  jiroofs  of  the  United  Wtates.  That  she  in 
ctVcct  undertakes  to  do  in  the  aibitrary  estimates  of  otVicials  or  i)rivate 
juMsoiis  containetl  in  her  Counter  Case,  as  in  the  naturi^  of  i)roofs  <'()n- 
tradictory  of  the  otlicial  statements  and  ])rivate  attidavits  or  other 
juoofs  presented  by  the  United  States.  If  thes«*  formal  statements  on 
the  part  of  the  ["nite<l  States  do  not  sutlice,  aiul  «'stimates  are  needed, 
tlu'  ( 'ounsel  of  the  United  Stat»'s  resj)ectfully  insist  that  such  assessments 
iiuist  be  made  by  the  otlicial  Assessors  of  the  Treaty. 

(/()  In  th(^  Ai)pendix  to  this  Argument  will   be  found  special  discus- 
sion of  the  nu'rits  of  these  claims  of  private  j)ersons  with     ,|,„„.  „,  ,„„,,„ 
K'tci'cnce  to  the  criticism  of  the  Uritish  Counter-Case  thereon,  '"  '" 
to  which   we   resi»ectfully  soli<Mt  the  attention  of  the  Tribunal.     (See 
Appendix  to  this  ArgunuMit,  Note  1>.) 

We  come  now  to  the  class  of  claims,  some  private,  some  general,  which 
in  lecent  discussions   between   the   two  (lovernments  are 
(ilijccted  to  by  (ireat  JJritain  as  being  "indirect." 

These  are : 

(1)  The  enhanced  rates  of  insurance  in  the  United  States,  occasioned 
l>y  the  Confederate  cruisers  in  question,  involving  great  Km,,,...!,,!..,,, 
Itocuniary  loss  to  the  citizens  of  the  United  States.  '"-"" • 

Certain  it  is,  this  injury  was  actual,  and  a  loss  "growing  out  of  the 
acts"  of  the  Confederate  cruisers  by  necessary  relation  of  (viuse  and  ef- 
loi't,  and  it  followed  immediately  on  the  appearance  of  those  cruisers. 

(li.)  Tiansferofthemaritinu' commerce  of  the  United  States 
to  (beat  liritain. 


1 


This  was  a  national  loss  "growing  out  of  the  acts"  of 


St;ili-4    riillinicrif   t 

llr  r-h  iliiB. 


\\w  cruisers,  and  having  theln  for  its  distinct  and  sole  cause. 

It  was  a  loss  to  the  United  States  constituting  gain  to  Great  IJritain. 
We  do  not  say  that  she  was  culiiably  negligent  of  the  obligations  of 
neutrality  in  (O'dcr  that  she  might  thus  gain  thereby,  but  we  <lo  say 
that  the  loss  to  us,  and  the  gain  to  her,  were  the  necessary  and  innne- 
iliate  effect  of  her  negligence  in  that  respect. 

(■'{.)  Tlie  i^rolongation  of  the  war  of  liebellion  in  the  |.,,i„,,,„.  ,„tih, 
United  States. 

The  admitted  gravity  of  the  injury  thus  suffered  by  the  United 
States,  and  the  supi)osed  enormous  I'lagnitude  of  the  sum  requisite 
to  indeniuify  the  United  States  in  the  premises,  have  caused  this  head 
of  claim,  as  stated  in  the  American  Case,  to  be  conspicuous  in  the  re- 
cent discussions  between  the  two  Governments,  an  !  '.<!  become  the  sub- 
ject of  special  commentary  on  the  part  of  eminent  ^i  !i  iicists  and  public 
men  in  Europe. 

It  is  the  claim  which  presents  itself  to  the  minds  of  all  as  the  "  indi- 
rect ciaims"  of  the  United  States. 

Whatever  we  may  further  have  to  say  regarding  the  distinction  of 
Indirect  and  direct,  in  the  consideration  either  of  the  general  or  of  the 
particular  question  of  damages,  we  desire  to  have  regaided  as  applica- 
ble mainly  to  this  claim. 

Ill  stating  our  views  of  the  general  subject  of  damages  we  frankly 
recognized  the  existence  of  the  distinction  in  law  between  damages 


■■  .( 


,'i  '^  i'j 


222 


AKGIMKNT    OK    TIIK    IMTKD    STATKS. 


'!I^ 


i.T  K...I.  .. . 


f>r(>xiiiuiti>  or  direct  and  daiiia^t's  reinotc  or  indirect,  admitting  the  I' 
and  the  validity  of  the  distinction. 

But  we  took  care  to  Htate  at  the  same  time  tliat  the  distinction  is  al 
wi,.ii,.r  ..„,  r.  together  unttertain,  not  to  say,  in  many  (iasea,  shadowy; 
r"rt./'i'V,u"rr,',',l,,'  that  the  dividing  line  vmu  no  more  be  drawn  in  the  abstract 
•""""" than  the  line  between  the  contiguous  colors  of  the  spec- 
trum ;  and  that  in  private  controversies  the  attempt  to  make  the  dis 
crimination  generally  results  in  a  4|uestion  (»f  fact  for  the  determination 
of  the  (competent  tribunal. 

The  idea  is  well  expressed  by  Mr.  Pradier  Fod«'r«'',  as  follows: 

MiiiH  I't'lcvation  «I«'s  priiiicH  •rassiirain-o  tiint'iioc  jtar  h-s  <1rpr<'-<latioM8  cortaiiios  ct 
n-|M'-t«''(!s  iU'  4>i>rHair<>s,  iiiais  la  |ir(il(Hi<rati(iii  <1<^  la  ^ikm'it  dun  aii>:  HU('('r> 
di'  <!»'H  d<'ini(!rs,  itoiiriuiciit  i'tiv,  saim  trop  forcer  I'uppi^^ciatioji,  coiiHi 
diMocs  <'(iiiiiiic  dcs  suites  prctcliaincs,  et,  siuoii  lU'cessaires  ot  uuiqucs,  dii 
nioins  iiaturelltis,  dc  la  f'aufc  du  uoutir.  II  y  n  In,  «lii  rcste,  uiw  >*Mt\  do  <!onsid<■l•ati()ll^ 
a  pcstT,  a  ('tiulier.  T-a  ri-jjle  al>s(due,  c'est  qu'on  no  jiout  «M|uitaldt'nHMit  ct  raisoiiuidjlf 
incur  iinposcr  la  i'cs|)onsabilit(>  dcs  dninuia^^cH  indireets.  >lais  I'tant  d<iun(^s  tcls  doni 
nni;;cs  causes  ct  t'prnuvcH,  (jucls  d'cutn;  ciix  sont  ilirccts,  (|nels  sout  indireets  .'  <)u  in 
)ieut  ])as  Ic  dire  d'avaiu'c  :  e'est  un(M|ucstiou  a  examiner,  en  deseendaut  dans  les  (ji- 
tails  ct  en  discutant  les  causes  itc  (dia(|Uu  donuna^rc.' 

What  INI.  IMiidier  Foib'Tc  says  in  this  respect  is  lullyjiistilied  by  all 
the  sjK'cial  discussiims  t)f  tlu^  «|UC'stion  in  the  Jurisprudence  of  (Ircat 
Mritaiii  and  the  United  State's,  as  well  as  of  other  comirrics  of  l']iii'()pc 
and  Anicricii.  The  w<'Il-considen'd  treatise  of  Mr.  Mayiie,  and  tlu 
still  aniplei'  and  more  complete  treatise  of  Mr.  Sedgwick,  contain  ii!»mi 
dant  ]iroof  on  this  point. 

TIh^  (,'oniiter  Case  of  the  lUitish  Ciovernment  exliibils  iiu  apt  lllustra 
tiori  of  this  point,  in  arguing  tliat  even  the  <;laims  for  property  actiiall,\ 
destroyed  by  the  Alabama  are  indirect  cliiims,  and  theref<U'e  to  be  re 
Jected  by  the  Tribunal.  It  is  not  worth  while  to  add  to  what  we  liavi 
already  said  on  that  argument.  We  sujipose  it  assunu'  *^liat  negligcnc 
is  the  <'anse  and  vsvupe  the  direct  elfect,  so  that  the  c  'vs  are  tlie  in 
direct  elfect ;  whicli  is  equivalent  to  saying  that  In  by  malic(H)i 

gross  negligence  discharges  a  loaded  gun  into  a(*ro\vd  is  not  respoiisilile 
for  the  (leatlis  or  woumls  he  inllicts,  because  the  injury  done  is  the  effect 
of  the  action  of  the  ball,  which  is  a  secomlary  (;ause,  and  not  of  tlie 
act  of  negligence  or  malice  which  did  but  ai)ply  a  match  to  the  gun. 

The  Counsel  of  the  United  States  would  m)t  need  to  have  recourse  te 
.., „.,  ;i ,  ,M>,.i.  .  any  such  subtleties  to  show  that  the  acts  of  the  Confederat( 
""  cruisers  inflicted  an  injury  on  the  United  States  in  cotitrib 

uting  to  the  prolongation  of  the  war,  ami  that  such  injury  was  a  direct 
injury  of  Government  to  Government.  Nor  would  it  be  any  answer  ti' 
say  that  this  injury  was  but  a  contributing  fact  among  other  and  even 
greater  causes  of  the  damage. 

Nor  would  it  suffice  to  reply  that  the  exact  amount  of  the  daina,i;o  i> 
dilUcult  to  fix.  When  a  traveler  is  injured  by  reason  of  want  of  due 
diligence  on  the  part  of  the  managers  of  a  railroad,  it  is  no  defense  to  say 
that  it  is  difficult  to  fix  the  true  value  of  his  arm  or  his  leg,  or  the  money 
compensation  of  a  loi;g  tit  of  sickiu'ss.  That  is  a  problem,  like  others 
of  the  same  naturi>,  v^•iucll  finds  its  solution  every  daj'  in  the  ordiiian 
courts  of  Justice  of  all  countries. 

One  nation  invades  pnotlier,  and  inflicts  losses  by  acts  of  war  on  land. 
If  they  choose  to  nnike.i)eace  on  the  condition  of  the  invader  indeinni 
tying  the  losses  of  the  invaded,  the  sum  which  ought  to  be  paid  isde 
batable:  but  certainly-  it  can  be  determined.  So  if  two  cooperating; 
nations  invade  another,  the  sum  of  injury  dtme  by  one  of  them  as  di^ 

'  I'radicr  Fudcre,  l.a  qxexiion  <Jr  V.llabnma,  p.  '\7. 


«^-*f 


NATIRK    AM>    AMUlNT    OK    DAMACJKS. 


Ml         .|.    SM 


tiiij;iusliO(l  I'lom  tin;  oMkt  i.s  (hiteriniiiubhs  if  not  with  <v\ii(5tiu'.ss,  .>i* 
iipproxiiiiatoly,  like  most  other  uiili«|iii(hite(l  (laniiip;es ;  to  say  notliiu^ 
of  tht!  question  of  extMuphiry  (hinuiKes  in  the  cases  of  tort,  whieh  run 
tojj«^thei'  in  the  discretion  and  couscionco  of  the  competent  tribunal. 

15ut  there  is  war  on  sea  as  well  as  on  land.  A  war  maybe  exclusively 
iiiiuitime,  like  that  between  France  and  the  United  States.  Such  a  war 
consists  in  the  combat  or  capture  of  ships.  Yet  su(;h  a  war  inHicts 
uational  injuries  and  losses  independent  of  the  value  of  vessels  destroyed, 
iiiul  if  terminated  by  the  payment  of  indemnities  for  the  cost  of  the 
war.  either  by  one  or  by  several  parties  belli;;erent,  the  sum  of  the  rep- 
iiration  can  be  calculated  and  determined. 

Such  is  the  relative  predicament  of  (Ireat  Britain  and  the  United 
States.  We  liave  been  injured  as  a  nation  by  acts  of  ji  maritime  war 
lia|)p»Miin}>',  as  the  Counsel  think  they  have  proved,  by  the  culpable  ami 
losponsible  ne;;ligence  of  the  British  ( Jovernment.  The  wronj;'  is  direct 
iis  Itetweeii  the  two  luitions. 

We  think  wc  have  distinct  \\<>;\i{  of  substantial  indemnitv  in  this  be- 

iiiiir. 

Wlicii  a  nation  inflicts  a  wron^'  on  a  nation,  is  it  due  r<>paration  to  ]>ay 
iln'  pri«('  of  t'ertain  ships  destroyed  .'  Surely  not.  any  more  than  the 
liiic  paid  by  the  wi'altliy  Konian  to  repaii-  the  insults  he  inllicted  on 
cvciy  person  \n'  met  in  the  tbruni. 

Milt  considjM'ations  of  laviiv.  impint  in  the  sphere  of  international  re- 
Lilioiis,  of  which  tln^  (Jovernnu'ut  of  the  United  Slates  is 
!lii'  liuhtfnl  judjic,  forbid  theirConnsel  to  picss  for  extreme 
(laiiia^cs  on  account  of  the  nati(mal  injury  thus  snilered  by 
rlic  nation  itself,  thi'onjiii  the  n('<;li]nence  of  (ii'cat  iJritain.  Xeverthe- 
Itss.  lioldinji'  that  in  view,  we  Iuinc  maintained  in  this  Ai'^^unu'nt  the 
'.ili'iititnde  of  the  jnrisdiclion  of  the  'i  libnnal,  because,  in  the  jndjiinent 
oi' the  I'nited  vStates,  such  is  the  l('n(M'  an«l  intent  of  the 
frcaty  of  Washington;  and  ln'canse  they  dcsii(>  tin;  judj;-  ti„  .'iM.T.M/VHm.'J' 

iiicnt  of  the  Tribnind  on  this  particular  question,  for  their  '"' ' 

I'wn  j;iiidance  in  their  future  relations  with  (iieat  JJritain. 

Tliey  contend  that  the  qnoKtion  of  dannij;'es,  as  whether  direct  or  in- 
ilircct,  is  a  Juridical  one,  not  one  of  the  Treaty. 

Tlie  United  States  did  not  insist  on  the  absolute  jnenerality  of  scope 
vliicli  distinguishes  the  Treaty,  with  unreasonable  e\i)e<;tations  of  hav- 
iiiii;  extravagant  danmges  awarded  by  the  Tribunal.  Their  object  was 
a  iiigher  one,  and  one  more  impintant  to  them,  and,  as  they  conceived. 
II)  (ireat  Jbitain. 

It  is  not  ior  their  interest  to  exaggerate  the  responsibilities  of  neu- 
trals i  but  only,  in  the  sense  of  their  action  in  this  n-spect  throughout 
their  whole  naticnnd  life-time,  to  restrain  the  fiehl  of  arms  and  enlarge 
tliiit  of  peace,  by  establishing  the  rights  and  the  duties  of  neutrality  on 
a  liasis  of  truth  and  justice,  beneficial  in  the  long  run  to  all  nations. 

If,  as  a  jnridi(ral  question  uiuler  this  Treaty,  the  Tribunal  shall  con- 
<:liule  that  Great  IJritain  is  not  bound  to  UKike  reparation  to  the  United 
States  for  general  national  injuries  occasioiunl  by  the  negligence  of  the 
lU'itish  (lovernmcnt  to  fulttll  neutral  obligations  in  the  nnitter  of  Con- 
t'^ilorate  cruisers,  it  will  say  so  ;  and,  in  like  manner,  if,  as  a  juridical 
'I'U'stion,  under  the  Treaty,  the  Tribunal  shall  conclude  to  the  contrary 
111(1  award  danniges  in  the  premises,  the  United  States  will  accept  the 
'lecision  as  a  litial  determination  of  the  fact  and  the  public  law^  of  the 
'luestions  arising  under  the  Treaty. 

The  United  States  desired  that  the  Treaty  shoidd  be  a  full  and  final 


II 


B' 


224 


AKGUMENT    OF   THE    UNITED    STATES. 


wiihoui  an  ,uin  settlement  of  all  differences  between  the  two  nations,  vliicji 
jiirat'ioy ,  p "  m"' '.'t  it  would  not  have  been  it'  thelargrer  national  claims,  so  loiiic 
!u'iuHHl-m"°t..f''aii  and  so  steadily  insisted  on  bj'  us,  had  been  excluded  from  tlu- 
scope  of  the  Treaty,  anti  so  left  to  be  a  recurring  subject  oi 
jrrief  aT^d  offense  in  the  minds  of  the  people  of  the  United  States.  They 
desired  also  that  great  principles  of  neutral  obligations  and  neutral 
duty  should  issue  ironi  this  High  International  Tribunal,  representing: 
five  great  Constitutional  Nations,  to  serve  as  instruction  and  examjd**  to 
all  nations,  in  the  large  interests  of  civilization,  of  humanity,  and  ot 
peace. 

We,  the  Counsel  of  the  Uiiited  States,  have  acted  accordingly,  in  tin 
advocacy  of  tlie  rights  of  the  United  States;  earnestly  and  positively 
maintaining  tlie  ])rinciples  involved  in  this  Arbitration,  but  regarding 
the  mere  (piostion  of  the  amount  of  national  danniges  to  be  awarded  a> 
secondary  to  tlie  higher  consideration  of  the  welfare  and  the  honor  i>t 
the  United  iStntes. 

We  now  bring  to  a  close  this  Argument  on  behalf  of  the  United  Stati'>. 

"sliowing  the  i)oints  and  referring  to  the  evidence"' wliich 

we  think  should  h'ad  to  an  award  by  the  Tribunal  of  rc]- 

aration  and  iu<lemnity  from  (Jrc.it  Jhitain,  commensurate  with  the  in 

juries  the  United  States  have  sutlered  and  the  redress  they  are  entitlti! 

to  demand. 

We  shall  not  find  in  recent  history  any  example  of  two  powerful  nation.-. 
with  so  weighty  a  matter  of  difference  between  them,  submitting  tlit 
measure  of  right  and  wrong,  of  injury  and  redress,  in  the  great  contro- 
versy, to  any  intermediary  arbitrament.  Wiien  their  own  reason  ami 
justice  did  not  enable  them  to  concur  in  accepting  a  tit  solution  oi 
the  grave  disjiute  it  has  too  often  been  left  to  work  ill-will  and  estranuv. 
ment  between  them,  or  led  to  open  rupture  of  their  peace.  ' 

The  benevolent  and  sagacious  counsels  of  the  two  governments  liavt 
triumphed  over  the  obstacles  and  resisted  the  dissuasions  which  l-.avi 
heretofore  proved  too  strong  to  be  overcome,  atul  the  success  of  tlii- 
great  exami>h',  so  full  of  promise  of  peace  and  justice  among  nation-, 
now  rests  witli  the  Tribunal. 

In  the  wi.se  admini.>tration  of  this  elevated  and  benign  trust,  for  tli( 
welfare  of  the  world  c  )ntided  to  this  august  Tribunal,  tlie  Arbitrator- 
will  fiuil  no  surer  guide  or  support  than  a  coiisichMation  of  the  ill  con 
seqneni'es  which  would  follow  from  a  disappointment  of  the  liigii  liopi'- 
whicn,  on  all  sides,  attend  this  great  experiment. 

So  far  as  tlie  parties  to  this  itontniversy  are  concerned,  they  are  equallv 
interested  that  the  award  should  re<*eivc  the  moral  acceptance  of  tin 
people  of  both  nations,  as  an  adequate  and  plenary  settlement  of  tin 
matter  of  difference  between  them. 

The  people  of  the  United  States  have  definitely  forn>ed  their  oi)inioii- 
as  to  wliat  the  action  of  Her  Majesty's  Government,  now  under  judgment, 
was,  as  matter  of  fact,  and  as  to  tlie  magnitude  and  permanence  of  tlu 
injuries  which  they,  their  |»roperty,  and  their  pros|>erity,  have  snlVereil 
therefrom.  They  naturally  look,  therefore,  with  chief  interest  to  tin 
award  of  this  Tribunal  as  a  decision  upon  the  cpiestion  of  the  ri(fhtJ'iiJn<x^ 
of  such  a(!tion  of  Her  IMajcsty's  C}overnment,and  by  consequence  ol  tin 
rightfulness  of  such  action  in  the  future,  should  occasion  arise  for  it> 
imitation  by  the  United  States  or  other  Powers. 

This  principal  <piestion  having  been  determined,  if  (jireat  Britain  i' 
held  responsible  for  these  injuries,  the  people  of  th'^  United  StaU"^ 
expect  a  just  and  reasonable  measure  of  compensation  for  the  injuru- 


w 


NATURE    AND    AMOUNT    OF    DAMAGES. 


225 


as  thus  adjudicated,  in  the  sense  that  belongs  to  this  question  of  com- 
pensation, as  one  between  nation  and  nation. 

The  disposition  of  this  controversy  by  the  Tribunal  upon  principles 
adequate  to  its  profound  interest  to  the  Parties,  and  in  the  observant 
eyes  of  other  nations,  gives  the  best  hope  to  tlie  civilized  world  of  a 
niore  general  adoption  of  the  arbitrament  of  reason,  instead  of  force,  in 
tlie  disputes  of  nations. 

And  for  the  rest,  the  permanent  antT  immutable  principles  of  Justice 
are  adequate  for  this,  as  for  every  other,  situation  of  human  aftairs ;  for 
this,  as  for  every  other,  Tribunal  instituted  in  its  name  and  for  its  main- 
tenance. Justice — universal,  immutable  Justice — is  wholly  indestructible 
l»y  the  changing  fortunes  of  States  or  by  the  iutlueuce  of  all-devouring 
time, 

Casihiis  haec  niiUin,  nuUo  dchhilia  acvo. 

In  this  spirit  we  humbly  submit  the  whole  subject  to  the  enlightened 
jiulgnient  of  the  Tribunal. 

C.  Ci'sniNG. 
Wm.  M.  Evarts. 
M.  R.  Waite. 


•  '*n 


i  n 


15  c 


r 

.  1 

A  r  r  E  N  D I X . 


NOTE  A.-OHSERVATIONS  ON  CERTAIN  SPECIAL  CRITICISMS 
IN  THE  BRITISH  COUNTER  CASE  ON  THE  CASE  OF  THE 
UNITED  STATES. 


I.— TIIK  BRITISH  FOREIGN  ENLISTMENT  ACTS. 

Ou  tLo  eijfhth  pajio  of  tlie  British  Counter  Case  it  is  said  :  "  Tiie  following;  sentence  is 
^iven  as  a  ([uotation  IVoiu  a  dispateli  sij^ned  by  Eail  Russell :  '  Tbat  tiu 
ii-unl'ni  \',"i'- "" '''"  !■  oit-'iK'''  Enlistment  Aet,  whieh  was  intended  in  aid  of  the  duties  *  •  ' 
of  a  neutral  nation,' &e.  What  were  the  words  ot  Earl  Russell  ?  Tluy 
were  these  :  '  That  the  Foreign  Enlistment  Act,  whieh  was  intended  in  aid  of  tin-  diitiis 
(tiid  rifihts  of  a  neutral  nation,  can  only  bo  applied,'  «Ve.  The  meaninj*  of  the  seuteiuf 
is  altered  by  leavinjj;  out  two  of  the  most  imi)ortant  words." 

The  Counsel  of  the  United  States  are  unable  to  discover  how  the  insertion  of  tin 
(unitted  words  would  increase  or  decrease,  modify  or  atl'e(;t,  the  i)rop(i.sition  that  tlir 
Foreign  Enlistment  Act  was  intended  in  aid  of  the  duties  of  a  neutral  nation  as  reim- 
sented  by  the  United  States. 

On  the  same  page  of  the  Hritisli  Counter  Case  it  is  further  said  : 

"  The  rejiort  of  the  Connnission  appoint<'d  in  lrl(I7  to  consider  the  laws  of  (inat 
Jbitain  available  for  the  Entbrcenient  of  Neutrality  is  thus  referred  to :  'TheTrilni- 
nal  of  Arbitration  w  ill  search  the  whole  of  that  RejKnt  and  of  its  various  ajipc!)- 
dices  in  vain  to  lind  any  indication  that  that  distinguished  body  imagined  or  thoufjlit 
or  believed  that  the  measures  which  they  recommended  were  not  in  full  conformity 
with  international  obligations.  On  the  contrary,  the  Commissioners  say  that  so  fur 
as  they  can  see,  the  adoption  of  the  recommendations  will  bring  the  municipal  law 
into  full  conformity  with  the  internatituuil  oldigations.'  Viewing  their  acts  in  the 
light  of  their  powers  and  their  instructions,  the  United  States  feel  themselves  Jiisti- 
lied  in  asking  the  Tribunal  to  assunu!  that  that  eminent  body  regarded  the  acts  which 
they  inoposcd  to  prevent  by  legislation  as  forbidden  by  international  law.  What  is 
the  passage  which  the  (Jovcrnment  of  the  I'nited  States  have  referred  to,  but  Lavi- 
refrained  from  extracting?  It  is  this:  '  Jii  mukiiiy  llw  foregohu/ mommiiidtitions  m 
hnvi  not  felt  oiirmlrts  lumml  to  coiiKidcr  icluthcr  we  were  exceeding  what  could  be  aetuallji  n- 
qiiired  by  hiteniatioinil  Low,  but  we  aie  of  opinion  that  if  those  reconunendatious 
should  be  a<'opted.  the  municiiial  law  of  this  realm  available  for  the  enforcement  ot 
neutrality  will  derive  incrcasi-d  ctticiency  and  will,  so  lar  as  we  can  see,  have  lieeii 
brought  into  conformity  with  your  Majesty's  international  obligations.'  Thus  by  leav- 
ing out  the  words  in  which  the  Connnissioners  observe  that  their  reconimendationsinay 
exceed  the  reciuirements  of  International  Law,  and  by  using  in  one  sense  words  whitli 
(as  the  context  proves)  they  iMuployed  in  another,  they  are  reiuescnted  as  saying  the 
very  thing  which  they  exi)ressly  guarded  themselves  from  being  supposed  to  say, 
namely,  that  all  the  acts  which  they  proposed  to  prohibit  wen-,  in  their  judguieut, 
already  forbidden  by  iuttrnational  law." 

The  United  States  accept  without  hesitatimi  tlu;  issue  thus  raised  by  Her  Majestys 
Governuient,  and  they  maintain  that  the  language  (juoted  in  the  British  Counter  C'asu 
does  not  justify  the  statemtMit  that  the  Commissioners  observe,  that  their  recomuieiula- 
tifuis  "  may  e.reeed  the  reffiiiremeiits  of  intenialional  law,'' 

The  Commissioners  did  not  say  this,  nor  anything  which  in  any  "sense"  gatlitivil 
from  the  "  context,"  by  any  rule  of  interiiretution,  can  be  construed  into  the  meaning 
which  is  attributed  to  it  in  the  British  Counter  Case.  They  did  iise  the  exact  lan- 
guage quoted  in  the  American  Case.  Tlu'y  said  that,  if  their  reeommemlHtionsslioiilil 
be  a«lopted,  the  municipal  law  of  Great  Britain  would,  so  far  as  they  could  see.  have 
been  brought  into  conformity  to  iuternatioual  obligations.  They  also  said  that,  in 
making  those  recommendations,  they  had  not  felt  theumel'  bound  to  consider  wlicliu  r 
they  were  exceeding  what  could  be  actually  required  by  interiiutioaal  law.  lu  oIIh' 
l^•ord8,  (hey  said  that  although  it  seoined  to  them  that,  while  the  projioscd  recoiiiiiit'iiii- 
ations  were  in  harmony  with  existing  international  obligations,  yet  they  did  not  foiiiul 
the  rec(mnnendation  on  that  fact,  but  on  its  own  intrinsic  merits.  The  Arbitrating 
will  judge  whether  this  is  not  the  fair  and  reasonable  construction  of  the  language. 


^liSfM" 


jutViniiity 

lilt  so  t'ai' 

ipul  law 

in  till' 

eH.jiisti- 

s  wliicli 

What  is 

lit  liav.' 

iiaUji  !•(- 
ulatidus 
euifut  lit 
avo  been 
by  lfii\  - 
ionsiiiay 
ds  whkli 

yiUjr  tllf 

'  to  nay. 

Mnjfsty's 
iter  fast- 
uiiiu'iiila- 

gatlififl 
iiicaiiiii^ 
xart  laii- 
^iissliixil'l 
]hi'<'.  liav 
|l  tliat.i)! 
whftlKi 
lu  otliii' 
tomiitt'iiil- 
liidt  fi)i»i>l 
rbitvati'i> 
jgiiugi'- 


NOTE    A. BRITISH    CRITICISMS    ON    U.    S.    CASE. 


II.-AMEKICAN  NEUTRALITY  IN  179:{-'94, 


227 


It  is  said  on  pajje  10  of  tlio  British  Counter  Case  that  "  it  is  pleaded  that   in  1793, 
iliirinj;  (ieueral  Washiiij^ton's  Adiiiinistiiitioii,  the    ie(»re.seiitativo  of 
(iieatlhitaiu  in  the  United  Stiites  iiointetl  out  to  Mr.  Jen'er.son,  who  was    (/."'VririM!'"™'" 
then  Secretary  of  State,  acts '«>/i/(7i  tverv  deemed  hj  Her  Britannic  MnjcKty's 
llovcniineiit  to  he  hreavhen  of  neutrality  done  in  contravention  of  the  President's  Procla- 
mation of  Neutrality,'  and  he  invited  the  United  States  to  take  stt^ps  for  the  r(!pression 
,it'  sucli  acts,  and  for  the  restoration  of  the  captured  prizes,"  and  that  "  it  appears  that 
tln>  United  States  coinplieil  with  tliese  re«|uests."    It  will  be  seen  that  the  representa- 
tions then  made  on  the  jtart  of  this  countrj-  to  the  United  States  wi;re  founded  on  the 
1  iiaraiter  of  the  acts  theiiisolves,  which  were  deemed  hy  thi;  British  Government  to  he 
linailies  of  neutrality,  and  not  upon  the  fact  that  they  wi-re  prohibited  by  the  Presi- 
(liiit's  Proclamation.'' 
The  letter  from  Mr.  TIainmond  to  Jlr.  Jefferson,  which  wih  ho  found  on  ])a};es  "210-41 
Xo.  ti)  of  the  fifth  volume  of  the  British  Appendix  is  the  best  reply  to  this  averment. 
Tiie  MiiHster  of  Her  Britannic  Majesty  says  to  the  American  Secretary  of  State  that 
lu'-'tloi's  not  deem  it  necessary  to  enter  into  any  reasonin;^  upon  these  facts,  ashecon- 
roivcs  them  to  be  breaches  of  tiiat  neutrality  which  tin*    Unite. i  States  profess  to  ob- 
serve, and  direct  Cdntrarcniioim  of  the  procldnuttion  which  the  I'rcnidcnt  initned  on  the'-i2d  of 
!(ist  month.''     The  United  Statrs  submit  that  this   letter  is  a  complete  ,justilicatie;i  of 
iliis  aliej;ation  in  tiieir  case  wlii,h  is  contested  by  Her  Majesty's  (iovernmeut. 

Ai'ain,  on  pa>ie  tiO  of  the  iJiitisb  Counter  Case,  referriiiLj  to  the  commission  appointed 
;inili'r  the  seventh  article  of  "'.lay's  Treaty,"  toasce-rtain  tiio  amount  to  be  paid  to(Jreat 
I'liitain  by  tin;  United  States,  it  is  said: 

•"'fluee  h^adiufi  decisions  iironoiineed  by  theni  will  be  found  in  tlie  Apjiendix  to  this 
( (innter  Case.     By  these  dceisions  it  was  rulfd  : 

••  1.  That  according  to  the  true  construction  oC  Articlf  VII  of  theTreaty,  con^dcd  with 
l/f.  .A //'( T'"'"'?!  letter,  no  claim  could  be  made  on  account  of  a  capture  made  before  the 
Mlior'.luue,  179:?. 
"Hence,  coini)ensation  was  refused  in  the  case  of  a  British  vl^s^el  which  ha«I  heen 
aiitiucd  on  the  •■"'til  of  May,  by  the  Saiis-Culottes,  a  privatiMjr  litted  out  in  Charleston, 
iiiil  liad  been  openly  brought  by  her  captors  into  tjic  port  of  Philadelphia. 
■"2.  Tiiat  no  compensation  would  be  made  by  vessels  illegally  litted  out  within  the 
uiisilictiou  of  the  IJuited  States,  unless  tlie  prizes  luul  been  subseiiueiitly  brought  into 
111  Aucrican  port.    The  owners,  therefore,  ot  a  vessel  which  the  captors  had  destroyed 
ill  sea  were  entitled  to  no  compensation. 

•:!.  That  where  the  prize  has  heen  brought  in,  no  comiiensation  could  be  claimed,  if 
;lie  I'laiiiiant  had  not  taken  proceedings  in  a  Distriet  Court  of  Admiralty,  and  juoved 
his  case  there  by  sullicieut  testimony,  or  if  there  had  been  any  ne-li^eiiiM'  or  any  delay 
.11  instituting  or  carrying  on  such  proceedings,  or  in  enforcing  ilie  judgiuent  if  ob- 
iaineil. 

"Auil  it  is  said,  on  page  ;U,  n^ferring  to  what  had  bi'en  I  by  the  United  States  in 
ilsisi'ase  concerning  this  precedent  :  '.Her  Majesty's  (Jovi  >!   deems  itself  entitled 

In  iisk  whether  tiiese  are  correct  representations  of  the  laei-  .-fluted  in  the  foregoing 
!ia;;es,' " 

Till'  lirst  point  i-eferred  to  in  the  Counter  Case  of  Her  Majesty's  (M>wrnnieiit  is,  it 

will  lie  perceived,  an  adjudication  by  the  tribunal  as  to  the  extent  of  its  ,;  "lisdiction, 

(..  tl.atit  did  not  extend  to  cases  arising  before  tin;  oth  day  of  June,  1791!.     The 

I'liited  States  did  not  suppose  that  this  point  would  be  i|Uestioiied  by  Her  Majesty's 

iMivpriniieut.    They  are  at  a  loss  to  nnderstaud  exactly  what  is  intended  by  Her 

Majesty's  (Joverumeut  in  its  remarks  in  respeet  to  tiiis  ]»oint.    The  IJuited  States,  in 

:hiirCase,  (on  page  1"29,)  say  that  Mr.  Hammond  was  informed  on  the  r)th  of  .Tune,  179:5, 

iliat  "((.s  to  renlorin(j  the ]iri:e»  it  could  not  be  don**;"  and  on  page  i;{il,  it  is  said  that    lie 

I'liitPil  States  Cioverninent  also  determined  at  that  time  as  to  the  littiug  (uit  of  priva- 

tiers,  that  "  it  was  its  duty  to  repress  them  in  fntnre,"'  and  "  to  restore  prizes  that  might 

i'leiiptiired,"  Ac.,  "or  if  unable  to  restore  them,  to  make  compensation  for  them." 

riie  reasons  for  this  distinction  tlrawn  Itetween  acts  committed  before,  and  those 

iimmitted  after,  .Tune  .">,  179:?,  were  fully  and  fairly  stated  by  Lord  Tentttrden  in  iii- 

iii'iiiorandum  which  is  to  be  found  in  liie  third  volume  of  the  British  Appendix,  and 

;lie  Ijiited  States  had  sui>posed  that  no  historical  fact  was  better  settled  than  that  tho 

llritisli  ({overnment  at  that  time  and  ever  since  had  acii.iiesced  in  the  propriety  and 

'lie  justice  of  the  distinction  drawn  by  (Jeneral  W'ashingtmi. 

Wiieii  the  United  States  made  their  statement  now  challenged,  altlnnigh  they  took 
tile  ineeaution  to  imlicate  that  it  referred  to  captures  made  after  .lune  o,  I79.'l,  they 
uiijjlit  have  assumed  that  it  would  have  been  so  construed  without  that  precaution. 

The  second  proposition,  on  the  twenty-ninth  jiage  of  the  British  Counter  Case,  is  to 
tip  taken  in  connection  with  tlu!  other  eoutrolling  and  limiting  remarks  in  the  statemtuit 
'Jl'the  coinndssioner  who  ren«lered  the  decision. 


I 


«> 


¥:■ 


■jll't  J, 

1  'i" 

'»    '"w 

fc-      ''■% 

,■«      ^ 

228 


ARGl'MENT    OF    THE    l.'NITED    STATES. 


Thcri!  Wiis  ill  tlio  Casf  no  allegation  of  peiinission  or  iiegloct  by  the  GovcrnnuMit  of 
the  United  Stat sh  as  to  tin;  aiiniuff  of  the  French  eruiser.     The  commi.ssioner  said  : 

"  Tlie  Counsel  for  the  elainiant  seemed  to  suppose  that  the  obligation  to  compensate 
arose  from  tlie  circunistance  of  the  privateer  having  been  originally  armed  in  the 
L'uitfd  States.  Ihtt  as  tliere  is  not  the  smallest  evidence  to  induce  a  belief  that  in 
this  or  in  any  other  case  the  ( jovernmeut  permitted,  or  iu  any  degree  connived  at,  such 
arming,  or  failed  to  use  all  tin;  means  iu  their  po^ver  to  prevent  such  eijuipment,  tlitirc 
is  no  ground  to  support  a  charge  on  the  fact  that  the  armament  originated  in  tlieii 
ports." 

In  view  of  the  fact  that  this  very  material  rpialification  of  the  doctrines  laid  dow.i 
in  the  ease  of  the  Jamaica  is  excluded  from  the  British  Counter  Case,  the  United  States 
think  they  are  justilied  in  repeating  as  to  the  stattunents  in  the  British  Counter  Case, 
the  question  there  propounded  bylli-r  Majesty's  Government,  whether  these  are  cor- 
i"ect  repi.'sentations  of  the  facts. 

As  to  the  third  i)roposition,  on  the  twenty-ninth  page  of  the  British  Counter  Case,  the 
United  States  refer  to  the  opinion  in  the  case  of  the  Elizabeth,  (British  AppeiuUx. 
volume  V,  jip.  ;51!>-32"',)  upon  which  it  is  said  to  be  founded,  which  in  the  opinion  of 
the  I'nited  States  forms  no  ailequate  or  just  ft  ludation  for  the  assertion  that  it  was 
there  decidetl  that  no  coni))cnsation  could  be  claimed  "if  there  had  been  an}/  ncglbunu 
or  any  dtlaij  in  instituting  or  carrying  on  proceedings  in  a  district  court  of  .admiralty," 
or  if  Ihc  rlaimaiit  "  had  not  proved  his  case  there  by  sutticient  testimony,"  or  if  there 
liad  betMi  "delay  in  enforcing  a  judgment  if  olitained."  The  Tribunal  will  alsojiidife 
whether  this  is  a  correct  representation  of  the  facts. 

III.— THE  UNITED  STATES  AND  I'OliTUGAL. 


Ou  pages  ;?2  and  ',V.i  of  the  British  Countci  Case  will  bo  found  an  extract  from  n 
letter  from  Mr.  da  Sena,  Portuguese  Minister  at  Wasliiugto...  u>  rhe  See- 
porlugl ■'"'""  '■""'  retary  of  State  of  the  Unittid  States,  dated  November  '2:\,  1819  ;  a.m,  coiii- 
iiientiug  upon  this  extract,  it  i^  said  on  page  1515  that — 

"  Tn  the  Case  of  the  United  States,  the  Mini.ster  who  writes  thus  earnestly  and  vehe- 
niently  is  represented  as  attaching  little  or  no  importance  to  the  matter.  The  reason 
given  is  that  he  has  chosen  the  moment  to  make  a  visit  to  Brazil.  But  in  the  8enteiife> 
Avhich  i)recedo  and  follow,  and  of  which  no  notice  is  tak'jn  in  the  Case  of  the  Uniteil 
States,  Ik;  has  exi)lained  why  he  chose  to  leave  his  post  at  that  ])articular  time,  namely, 
that  until,  by  aiiiendiuent  of  the  law  or  otherwise,  the  proper  means  should  Im;  found 
for  putting  an  end  to  this  '  iiioiistrous  eonspiraey,' he  fcjund  by  experience  that  com- 
]ilaints  were  useless,  and  sluj^ild  refrain  from  coutinuiiig  to  juesent  them  without  posi- 
tive order." 

The  statement  in  the  Case  of  the  United  States  which  is  thus  commenied  upon  \va> 
the  following : 

"On  the  y.5(l  of  November,  1^11),  the  Minister  again  comidained.  He  says:  'One 
City  alone  on  this  coast  has  armed  twenty-six  ships  whi(!h  prey  ui»on  our  vitals,  and  ;i 
week  ago,  three  armed  sliijjs  of  this  nature  were  in  that  jiort  waiting  for  a  favoralilf 
occasion  of  sailing  lor  a  cruise.'  But  he  furnishes  no  facts,  and  he  gives  neither  ])i(  f 
nor  fact  iud'_^.!tii'.g  the  eity  or  the  district  which  he  suspected,  ami  nothing  to  ali'mil 
the  fiovernment  any  light  for  iii(|uiiy  or  investigation.  Ou  the  contrary,  he  says  :  '/ 
xlinll  not  tire  iioii  nilli  the  nnmcronn  inntancrx  of  these  farts  ; '  and  ho  adds,  as  if  attaehin^' 
little  omoi'eal  importance  to  the  matter,  'relying  confidently'  on  the  successful  efforts 
of  this  Uoverniueut,  1  choose  this  niomi;nt  to  pay  a  visit  to  Brazil."  (American  Case. 
p.  14:5.) 

The  first  fact  that  will  strike  the  Tribunal  is  that  iu  this  statement  a.s,sailing  tln' 
fairness  of  tht;  auiilysis  of  this  letter  whirli  is  given  by  the  United  States,  the  extract 
at  the  close  of  the  United  States  analysi;  i  not  to  be  found.  In  fact,  tiie  British  Coun- 
ter Ca.se  omits  the  following  paiagrapli-  "i  Mr.  da  Sena's  letter,  which,  in  the  jud);- 
uieut    of  the  Uiiit(;d  States,  are  the  paragiaplis  tiie,  most  «'ssential  in  this  controversy: 

"The  Executive,  having  liniioralily  cxerte'd  tin;  powers  with  which  your  Constitution 
invests  him,  and  the  evil  he  wished  to  stoj)  being  found  too  re'fiactory,  it  would  he  men' 
ami  I'ruitless  iiniMntunity  if  I  continued  with  individual  complaints  except  by  jxisitivc 
orders.  This  Government  is  the  only  ))roper  judge  of  what  constitutional  depositions 
or  arrangements  may  l»e  established  for  the  enforeemeiit  of  the  laws,  and  he  alone  hi\> 
the  means  of  olttaining  them,  which  are  eoustitiitionaliy  shut  to  any  foreign  niiiiisfei. 
1  trust  iu  the  wi.s(l(»m  and  justiceof  this  Government  that  he  will  find  the  proper  means 
<)f  jtutting  an  end  to  this  monstrous  in tidel  conspiracy,  so  heterogeneous  to  the  very 
nature  of  the  United  States. 

"  Before  such  convenient  means  are  established,  the  t  Torts  of  a  rortugue.se  Minister 
on  this  subji;ct  (the  only  one  of  importance  at  jtreseiit  between  the  two  nations)  are 
of  little  jiiotit  to  the  interests  of  liis  Sovereign.  Kelyiiig  confidently  on  the  sueee.ssf'n! 
«>H'orts  of  the  (iovernmeiit  to  bring  forth  such  a  desiialile  order  of  things,  I  choose  this 
iiMUiient  to  pay  a  visit  to  Brazil,  where  I  am  authorized  by  His  Majesty  to  go.    Myil^''' 


NOTE    A. — BRITISH    CRITICISMS    ON    U.    8.    CASE. 


229 


and  my  private  affaivx  .lo  not  allow  nmch  delay  in  niakin<j;  nso  of  this  iit'iniission,  and 
I  intend  to  profit  by  the  lirst  proper  occasion  that  nuiy  oiler."  (liritish  Appendix, 
volinne  iii,  pa};e  IfM.) 

The  United  States  snhniit  to  the  Arbitrators  that  the  letter  of  Mr.  da  Serra,  when 
coiiii>leted  by  adding;  the  ])assage  omitted  in  the  IJritish  Connter  Case,  jnstilies  the 
stiitenient  nnide  in  their  Case, 

I.  It  refers  to  representation  made  "  dnrln<r  more  than  two  years  "  previonsly.  This 
ivt'irence  to  what  Inul  already  been  noticed  in  the  analysis  in  the  AmericauCaseitwas 
not  necessary  to  repeat. 

■J.  It  makes  an  averment  as  to  twenty-six  ships  armed  in  one  city,  and  as  to  three 
ariiied  ships  which  wvro  said  to  b(i  in  that  port  the  i)r(!vious  week.  This  iiverment  is 
niveii  in  the  American  Case  in  Mr,  da  SiMra's  own  hi'ifrinii^c!. 

o.  It  says  that  Mr.  da  Sena  will  not  tire  Mr.  Adams  with  the  nnnn'rons  instances  of 
tlic  facts,  bnt  he  >;ives  a  reason  for  this  which  is  omitted  in  the  Jhitish  Connter  Case, 
iiaincly,  that  while  he  is  sick  of  receiviii};'  conimnnications  of  I'ortnjjuese  i)roperty 
stolen,  he  recoj^nizes  that  the  Government  <jf  the  I'nited  States  has  been  sincere  in  its 
ili'sire  to  siippre.v>  what  he  complained  of,  and  has  exerted  itself  as  much  as  it  could  to 
iliat  end. 

4.  'ihe  llnited  .States  cannot  bo  said  to  have  represented  7Ir.  da  Serra  as  attachinff 
jittlt!  or  no  importance  to  the  nnitter.  "What  they  actually  said  was,"  he  adds,  as  */ 
attaching  littl(>  or  no  importance  to  the  matter,  "  reiyinj;'  conhdently  on  the  successful 
eftorts  oi  this  (Jovernnn-nt,  I  choose  this  nn)nient  to  pay  a  visitto  l?razil,"'and  they  sub- 
mit that  he  certainly  did  not  do  what  it  said  in  the  IJritish  Case  that  he  did  do,  "  Explain 
why  h(i  chose  to  leave  his  postat  that  particular  time,  namely,  that  until,  by  the  amend- 
iiieiit  of  the  law  or  ortherwise,  the  inojier  means  should  be  found  for  puttinj?  anend  to 
tills  •  monstrous  conspirjiccy,'  he  found  by  «'xy)erience  that  complaints  were  useless, 
and  should  refrain  from  coutinuin<f  to  present  them  without  positive  orders." 


:v-?»'fe-'^° 


jys:  'On,' 
lis,  and  ii 
iivorulili' 
ther  pi(  .1' 
to  a  til  ml 
says  :  '  / 
iitt'actiiii^ 
fill  ertoils 
icau  Case. 

lilinji  tlir 
he  extract 
tish  Conn- 
the  jml};- 
litre  vcvsy; 
mstitutiim 
lid  be  niiTi' 
jiositivi' 
It'positiDii* 
alone  li:b 
niiiiistt'i'. 
>j)er  nii'aiis 
o  the  vfiy 

Miaistov 
itions)  arr 

HUl'I't'S**!"' 

hoosc  tliii* 


IV.- NASSAU  IN  DECEMBER,  IHC.I,  AND  JANUARY,  1SG'.>. 

On  page  02  of  the  British  Counter  Case,  it  is  snid  : 

"  It  may,  however,  be  conv(>nient,  sinc(;  the  (iovernnient  of  the  United  States  has 
diari>ed  Earl  Russell  with  havinj^'  nej^lected  to  make   in(|uiry  ant'  con- 
tented himself  with  announcinj''  '  a  condition  of  atVairsat  Nassau  '  which  Nassun. 
was'  inuffiiniry,'  to  state  what  was  actually  done  by  Earl  Russell  upon 
the  receipt  of  Mr,  Adams's  representation,  what  had   been  previously  done,  and  what 
were  the  facts  existinfjf  at  the  time," 

The  alleitation  that  "  the  United  States  have  eharj^ed  Earl  Russell  with  having  neg- 
lected to  make  inciuiry,  iind  contented  himself  with  announcing  a  condition  of  atfairs 
at  Nassau  which  was  imaginary,"  is  itself  an  inuigination.  The  United  States  did  not 
deny  that  Earl  Jifussell  made  an  in(|uiry.  They  said  that  had  Earl  Russell  sirioiisly  in- 
(|uirc(l  into  the  conii)laints  of  Mr.  Adams,  a  state  of  facts  would  have  been  disclosed 
entirely  at  variance  with  the  rejuut  which  Earl  Russell,  on  the  8th  tlay  of  January, 
l>d"i.  sent  to  Mr.  Adams  as  a  cornTt  statement  of  what  was  taking  place  at  Nassau, 
and  that  that  statement  was  imagimiry.  The  facts  which  are  shown  prove  this,  Mr, 
Adams,  on  the  Sth  day  of  October,  IHfil,  transmittcMl  to  Earl  Russell  a  letter  showing 
tliat  "  a  (|nan!ity  of  arm^■  andi)owdtu',''  for  the  use  of  the  Insurgents,  was  "  to  be  shipped 
t(t Nassau,"  (■onsigned  to  Henry  Adderley.  Earl  Russell  answered  this  complaint  oa 
tlie  t^th  day  of  .January,  IHi'i,  by  saying  that  the  Lieutemint  (Joveinor  of  tln^  Bahamas 
had  received  a  letter  from  Mr.  Adderley  <lenying  the  allegations  biought  against  him, 
and  that  the  reeeiv<'r-general  at  Nassau  said  that  no  warlike  stores  had  been  received 
at  that  port.  The  United  States  proved  in  tlii-ir  Case  that  on  the  8th  day  of  .January, 
warlike  stores  had  arrived  in  Nassau,  and  had  been  transshii)ped.  Ifcr  Majesty's  (iov- 
ciinnent,  in  its  Counter  Case,  has  since  proved  the  same  thing  more  in  detail.  On  tho 
I'Jth  l)(!cember.  Lieutenant  Governor  Nesbitt  knew  of  the  eousignmi'ut.  (British  Ap- 
IHMidix,  vol.  V,  \^.'i7,  No.  H.)  On  the  'J8th  December,  ho  kiU'W  of  tht^  trausHhipment. 
iSame,  No,  D.)  It  is  clear,  therefore,  that  the  averment  of  the  United  States  that  tho 
'condition  of  all'airs  at  Nassau,"  as  annonueed  by  Earl  Ivussell  on  the  8tli  of  January, 
was  "imagimiry"  is  correct.  Whether  the  iufjuiries  of  Earl  h'ussell  were  "  seriously" 
prosecuted,  the  United  States  leave  to  the  Ari)itrators  to  decide,  on  a  comparison  of 
dates.  The  complaint  by  Mr,  Adams  was  niiide  on  the  1st  of  October,  Iritll,  (United 
Stales  Evidence,  vol.  i,  p.  WiO.)  The  instructions  to  the  Eieutemiut  (Jovernor  to  niako 
the  investigation  were  dated  the  l.">th  October.     (British  Appendix,  v(d.  v,  p.  20.) 

file  iii'iuiry  of  Aihh'rley  was  made  on  the  Kith  November,  and  tho  answer  comnuini- 
eatcd  to  Lontlon  on  the  *j(>th  November.  On  the  'Jth  day  of  December  the  (Jladiator 
arrived,  with  jtalpable  jnniof  that  the  answer  of  the  2lith  November  hail  misinformt'd 
Ihr  Majesty's  Government,  Between  that  day  and  the  nth  .Jamiary,  the  date  of  Earl 
Kiisscll's  note  to  Mr,  Adams,  there  was  identy  of  time  to  have  given  Her  Majesty's  Oov- 
•■niiiii'nt  correct  information,  which  v  imt  "  imagimiry,"  That  was  either  n<it  done, 
or  if  dune  it  was  never  eonmiunicated  to  the  Goverument  of  the  United  States. 


I        fe 


!  ■■!  :.  tj 


230 


ARGUMENT  OF  THE  UNITED  STATES. 


On  paj;o  65  it  is  HaiJ  : 

"It  might  have  betMi  reasonably  supposed,  thoroforc,  that  the  course  pursued  by  tlio  au- 
thorities at  Nassau  in  the  case  of  the  Flambeau  and  her  coal  ships,  would  have  nicritoil 
the  approval  of  the  Government  of  the  United  States  instead  of  being  denounced  us  h 
violation  of  neutrality.  *  *  What,  then,  is  the  grievance  of  the  United  States?  It 
is  that  the  United  States  cruisers  were  i)rccluded  from  using  the  Bahamas  for  belliger- 
ent operations." 

The  United  States  cannot  permit  themselves  to  characterize  this  statement  n^ 
it  deserves.  They  do  not  complain  that  they  were  "precluded  from  using  the  Hidia- 
niasfor  belligerent  operations,"  but  they  do  complain,  and  they  assert  that  they  have 
proved,  that  the  insurgents  were  encouraged  to  use  all  the  British  ports  for  such 
operations. 


NOTE  B.-EXTRACTS  FROM  VARIOUS  DEBATES  IN  THE  PARLIA- 
MENT OF  GREAT  BRITAIN  REFERRED  TO  IN  THE  FOREGOING 
ARGUMENT.  

I.— THE  FOREIGN-ENLISTMENT  ACT  OF  JULY  :?,  IHI'J. 

Dfliiito.s  in  Pailiiimont  on  the  juiNsaj^e  thereof. 

In  the  House  of  Commons,  latli  May,  'M,  lOtli,  11th,  and  t>l,st  June,  l-^l'l.  (8ee  Han- 
sard's Parliamentarv  Dehatos,  first  series,  vol.  xl,  pp.  iJ()i-374,  pp.  !567- 

'jifi»,  pp.  1084-1117,  pp.  11  la-ua.'-),  pp.  i'<>:vi-i28,',.)  JnlZ\'J  July 3,' 

In  the  Honse  of  Lords,  'iHth  June,  181'J.    (8ee  ihid.,  jtp.  1317-1410.)        ''^''• 

On  May  13,  1811),  the  Attorney  General  moved  for  leave  to  bring  mi  a  bill  to  prevent 
enlistments  and  equipments  of  vessels  for  foreign  service.     Ho  said  : 

"He  wished  merely  to  give  this  country  the  right  which  every  legitimate  country 
slionld  have,  to  pr.  vent  its  subjects  from  breaking  the  neutrality  existing  toward  ac- 
knowledged states,  .aid  those  assuming  the  power  of  any  states.  It  was  in  the  power 
of  any  state  to  prevent  its  subjects  from  breaking  the  neutrality  professed  by  the  Gov- 
ernment, and  thcv  were  not  to  judge  whether  iheir  so  enlisting  would  bo  a  breach  of 
neutrality  or  not."     (I'p.  3G2,  303.) 

He  said  further : 

"The  second  i)rovi8ion  of  this  bill  was  rendered  n'icessary  by  the  consideration,  that 
iissistance  might  be  rendered  to  foreign  states  tlirmgh  the  means  of  the  subjects  of 
this  country,  not  only  by  their  enlisting  in  warfare,  but  also  by  their  fitting  out  ships 
for  the  purpose  of  war.  It  was  extremely  import.ant  for  the  preservation  of  neutrality, 
that  the  subjects  of  this  country  should  be  prevented  fr'^ni  fitting  out  any  equipments, 
not  only  in  the  ports  of  Great  Britain  and  Ireland,  but  also  in  the  other  ports  of  the 
British  dominions,  to  be  employed  in  foreign  service.  The  priaciple  in  this  case  was 
the  same  as  in  the  other,  because  by  fitting  out  armed  vessels,  or  by  8U)>plying  the  ves- 
sels of  other  countries  witli  warlike  stores,  as  etVectual  assistance  might  be  rendered 
to  a  foreign  power  as  by  enlisting  in  their  service."     (P.  3(i4.) 

.Sir  James  Mackintosh,  opposing  the  bringing  in  of  the  Hill,  said  : 

"It  was  impossible  to  deny  that  the  sovereign  jtower  of  every  state  could  interfere 
to  prevtMit  its  subjects  from  engaging  in  tlie  wars  of  other  states,  by  which  its  own 
l)oace  might  be  endangered,  or  its  own  interests  affected.  His  Majesty  could  command 
his  own  subjects  to  abstain  from  acts  by  which  tlui  itiiationw  of  tln^  state  with  other 
states  might  be  disturbed,  and  could  comnel  the  observation  of  peace  with  them." 

(P.  :«)(•).) 

Lord  Castlereagh,  favoring  the  bringing  in  of  the  Bill,  said  : 

"It  now  became  us  to  adojtt  a  measure  by  which  we  might  enforce  the  common  law 
against  those  whose  conduct  wouhl  involve  us  in  a  war,  and  to  sliow  that  we  were  not 
conniving,  as  we  were  supposed,  witli  one  of  tlie  parties."'     (P.  3li'J.) 

Leave  was  given  to  bring  in  the  Bill.     (P.  374.) 

On  June  3,  1819,  the  Attorney  moved  the  second  reading  of  this  Bill,  and  said  : 

"Such  an  enactment  was  required  by  «!very  juinci  le  of  justice, ;  for  when  the  state 
says,  'We  will  have  nothing  to  do  with  the  war  waged  between  two  separate  powers,' 
and  the  subjects  in  opposition  to  it  say,  '  We  will,  howeviM-,  interfere  in  it,'  surely  the 
house  would  see  the  necessity  of  enacting  some  penal  statutes  to  iirevcnt  them  from 
doing  so;  unless,  indeed,  it  was  to  lie  contended  that  the  state  and  the  subjects  who 
composed  that  state  might  take  distinct  and  ojqtosite  sides  in  the  (pnirrel.  He  should 
now  allude  to  the  ])etitions  which  had  that  evening  been  presented  to  the  house 
against  the  bill ;  and  here  he  could  not  but  observe  that  they  had  either  totally  mis- 
understood or  else  totally  misreprt;sented  its  intended  objetit.  They  had  stated  that  it 
was  ealeulated  to  check  the  commercial  transactions  and  to  injure  the  commercial  in- 
terests of  the  country.  If  by  the  woids  '  c(uniuer«!ial  inteiests  and  commercial  trans- 
actions' were  meant  'warlike  adventures,'  he  allow«'d  that  it  would  ;  but  if  it  were  in- 
tended to  argue  that  it  wouhl  diminish  a  fair  and  legal  and  i»acilic  commerce,  he  must 
enter  his  jtrotest  against  any  sucli  doctrines.  Now,  he  maintained,  tliat  as  war  was 
actually  carried  on  against  Spain  by  what  the  petitioners  called  commercial  transac- 
tions, it  was  the  duty  of  the  house  to  check  and  injure  them  as  speedilv  as  possible." 
(P.  H7.-,.) 

Mr.  Deunnm,  opposing  the  bill,  said  : 

"He  was  perfectly  at  a  loss  to  conjecturo  by  what  ingenuity  the  honorable  and 
learned  gentleman  could  torture  this  argument  into  a  denial  of  the  power  of  the  sov- 
ereign and  the  legislature."    ( P.  877.) 


« 


232 


AKQUMEXT  OF  THE  UNITED  STATES. 


'ill- 


On  June  10,  IHl'J,  tho  Attornoy  Goncnil  moved  the  order  of  flu;  day  for  goiiij;  iiitit 
conunittee  on  this  bill. 

Sir  Jiimes  Mackintosh,  opposing  tlio  l)ill,  said  : 

"The  riyht  honorable  ;ft'ntlcniau  inul  observed  that  such  a  measure  as  the  i)n's('iit 
had  been  intnxluced  by  tho  Ciovernment  of  tho  United  States  and  aeceded  to  by  Com 
press.  Tiie  United  States,  said  the  rijjht  honorable  f^entlennin.  (unichnhsd  a  treaty  witli 
Spain,  and  Congress  jtassed  an  aet  to  carry  that  treaty  into  (effect.  And  why  did  tlicy 
dt>  so  ?  Jiecause,  thou'jh  tho  connnon  law  in  Enjjland  was  snilicient  for  the  reijiiiicil 
pur]iose,  in  America  it  was  not.  TIk^  power  of  making  war  and  peace  was  not  vested 
in  the  I'residcnit  of  America  as  it  was  in  the  Kinjjj  of  JCnf;lan;l.  In  America,  thcrcl'oic, 
a  le<;islative  act  wiis  necessary.  ]5ut  as  His  Majesty's  i)roclamation  of  l^'l?  was  still  in 
force,  how  could  any  le^jjislative  moasui'o  be  necessary  in  this  country  ?"     (I'.  l(i'J4,) 

^Ir.  Canninj;-,  sui)p()rtin;r  tho  bill,  Nai<l : 

"The  house  hail  to  d(!termine,  first,  if  tho  existing  laws  of  the  country  would  oualilf 
her  to  maintain  her  niMitrality  ;  secondly,  if  the  repeal  of  those  laws  would  leave  tiit; 
jtower  of  maiutainintj  that  ueutrnlity  ;  and  thirdly,  if  both  tho  former  i|uestioiis  Wfic 
nefjatived,  whtsther  tho  proposed  measure  was  one  which  it  was  lit  to  adopt."  (I'.  IMl. ) 

He  said  further: 

"  Was  there,  ho  would  .ask,  anything  incompatiblo  with  tho  spirit  of  liberty  in  cn- 
al)ling  a  jjoveruuu'nt  to  lay  such  a  restraint  on  the  action  of  its  own  subjects  as  nii;;lit 
insure  the  observance  of  perfect  neutrality  toward  two  bollif^erents  ?  If  there  was,  how 
happened  it  that  the  honorable  and  learned  <;entlennin  approved  so  cordially  of  tin- 
proclamation  of  1H17  ?  In  that  i)roclauiation,  which  was  the  only  public  act  of  tlii; 
hritish  government  on  the  subject,  a  spirit  of  strict  impartiality  had  been  exhibited, 
Contemplatiufj  the  character  of  that  proclamation,  what  ri<;ht  had  any  nmn  to  iiitVr 
that  the  feelings  and  opiuionsof  jfovernment  had  undergone  a  change  on  the  subject.'" 
(r.  11(14.) 

lie  said  further: 

"It  surely  could  not  be  forgotten  that  in  1794  tliis  country  comphiined  of  various 
breaches  of  neutrality  (thcmgh  nnich  inferiiu'  in  <legre«>  to  those  ik)w  under  ('(uisidfiii- 
tion)  connnitted  on  the  jiart  of  subjects  of  the  United  States  of  Anu-rica.  What  was 
the  conduct  of  that  nation  in  con8e(|m'nce  ?  Did  it  resent  the  complaint  as  an  infrin^re- 
ment  of  its  indepondenco  .'  Did  it  refuse  to  take  such  steps  as  would  insure  the  iiiniii,'- 
diate  observance  of  neutrality  ?  Neither.  In  179,'),  immediately  after  the  application 
from  tho  British  government,  the  legislature  of  th<!  United  States  passed  an  act  pro- 
hibiting, under  heavy  penalties,  tho  engagement  of  AuM^rioan  citizens  in  the  armies  of 
any  belligerent  power.  Was  that  the  only  instance  of  the  kind  t  It  was  but  last  viai 
that  tho  United  States  i)assed  an  act,  by  which  the  aet  of  17l>.">  was  coulirnu'd  in  even 
respect,  again  prohibiting  tho  engagement  of  their  citizens  in  the  servict;  of  any  forcinii 
power;  and  pointing  distinctlv  to  tho  serviceof  Spain,  or  the  South  Americivn  i)ro\  iiRcs,' 
^r.  110;-).) 

He  said  further: 

"  If  a  foreigner  should  chance  to  comi'  info  any  of  our  i)orts  ami  see  all  this  mijility 
armament  e<ini])ping  for  foreign  service,  he  would  naturally  ask,  'With  what  nation 
are  you  at  war  '"    The  answer  would  be,  'With  noiu'.' 

"  'For  what  purjiose,  then,'  he  wouhl  say,  '  are  these  troops  levied,  ami  by  whom  V 
The  reply  of  course  must  l>e,  '  They  are  not  levied  by  government ;  nor  is  it  known  tor 
what  service  they  are  intended;  but,  be  tho  service  what  it  nniy,  governnu-nt  cannot 
interfere.'  Would  not  all  that  give  such  a  foreigner  a  high  idea  of  tho  excellence  of' 
the  English  constitution  .'  Would  it  not  suggest  to  him  that  for  all  the  ordinary  itin- 
poses  of  a  state  there  was  no  governmont  in  England  /  Did  the  honorable  and  h-aniiMl 
gentlenum  not  think  that  tin;  allowing  of  arnuunonts  to  be  fitted  out  in  this  countiy 
against  a  foreign  power  was  a  Just  cause  of  war  ?"     (!'.  110(5.) 

He  said  further: 

"  It  was  the  doctrine  laid  down  by  the  English  govennnont  itself  that  was  now  on 
its  trial.  This  country  was  now  calh'd  upon  to  say  whether  it  would  act  on  its  owna.s- 
sorted  principles.  Those  acts,  which  the  bill  under  the  c«msideration  of  I'arlianicnt 
tended  to  repress,  were  acts  whicii  in  tho  docunn^it  i)nt  forth  by  England  forty  years 
ago  were  termed  a  'nninifest  broach  of  tho  law  of  nations.'"    (V.  1107.) 

On  .Fune  11,  l^lit.  Lord  Castlereagh,  in  answer  to  an  in((niry  made  in  the  debate  on 
the  bill,  said  :  "That  His  Majesty's  government  had  issued  a  prohibition  against  the 
exportation  of  arms  or  warlike  stores  to  Cuba,  or  any  of  our  West  India  islands,  for 
tho  jturposo  of  being  sent  to  the  service  either  of  the  provinces  in  insurrection,  or  of 
those  continuing  within  the  allegiance  of  Spain.  They  had  taken  precautions  to  guiinl 
against  our  own  islands  being  nnido  the  means  of  thwarting  tho  views  of  tho  parent 
state."    (U.  Il-:i4.) 

On  June  !il,  lr<H»,  the  order  of  the  day  being  for  the  third  reading  of  the  Foreign  En- 
listment bill,  Sir  W.  Scott,  supporting  the  bill,  said  : 

"  It  was  quire  unin^cos.sary  for  him  to  argue  that  it  was  Just  and  proper  to  preserve  ii 
strict  neutrality  between  a  country  and  its  colonies,  when  that  country  was  bound  to 


NOTE  H, rARLIAMENTARY  DEBATES. 


233 


us  in  tlio  '.  .<^s  of  amity,  by  cxistiiifj  troatics.  Wlioii  licHiiid  ii  stri(!t  iKMitriility,  ho  iimaiit 
a  ntiitiiility  wliicli  ((iiisistod  in  a  conipliitoiilistincnci',  not  only  I'roni  alisolufci  warfarr. 
liiit  tVoni  tiic  f^ivinjf  ol' any  iviiul  of  a.s.siMtanco  to  I'itlicr  on*'  sidn  or  tin.'  otlicr."     (I*. 

1->:W.) 

1I«'  said  fuitluu-: 

"Tiiei't'  could  b»(  no  .solccisni  more  injuriinis  in  itstdf,  or  more  niisdiicvons  in  its  con- 
st'(|iii'U<'«'s,  than  to  arjfnt^  that  tin'  Niiiijciit.s  of  a  Mtati^  had  a  rij^ht  to  act  aini<ral»ly  <»i' 
iidstilt'ly  with  rcfi'ionrt!  to  other  eonntrics,  without  any  interpositiini  of  tin;  State  it- 
self. It  was  hardly  ntjee.ssary  for  him  t<»  juess  thcise  eonsideratious,  heeaus*)  all  tini 
aijiiniionts  that  he  liatl  heard  o\\  tlm  suhjtict  had  fully  admittisd  that  it  was  the  riyjlit 
(if  .States,  and  of  States  only,  ti>  deterniimi  whether  they  would  eontiune  neutral  or 
assume  a  helligeriMit  attitiulo — that  tht^y  had  the  i)ower  of  jueventiiij;' their  sul»ie('ts 
Iroiii  liecoininj'  Itelli^erent,  if  they  phrased  to  exert  it.  In  the  next  jjlju'e,  it  was  fully 
admitted  that  the  j^overmnent  of  this  country  possessed  that  rij;lit,  which  was  essen- 
tial to  its  safety  and  soverei^fuly."     (!'.  \.'2'.V,\  ) 

Mr.  Robert  (irant,  supitortin;^  the  Hill,  said: 

"Why,  Sir,  what  sort  of  neutrality  is  this,  which,  while  it  operattis  only  as  a  moro 
siilitle  sword  of  annoyance  a<^ainst  tht^  passive  party,  throws  an  impi-netrable  ie;{is 
liver  the  assailant  ?  A  neutrality  which  comi)letely  proti.'cts  the  aj^yrressions  of  the 
power  who  has  stii)ulated  to  observe  it,  while  it  leaves  the  power  to  whom  the  stipu- 
lation has  been  jjiven,  only  tenfold  more  exposed  anddefiMiseless.  Let  the  matter  next 
lie  tried  on  a  somewhat  broader  <rroun(l.  Every  ^rovernment,  in  its  foreifjii  relations, 
was  the  representative  of  tlu^  nation  to  whi(!h  it  l»elonj>ed,  and  it  was  of  the  hif^hest 
iiiiltortance  to  the  peace  of  uiitious  that  j^overument  should  be  so  considered.  Nations 
aiinouneed  tlmir  intentions  to  each  other  through  the  nuidium  of  their  rulers.  Hence 
every  state  knew  where  to  look  to  expressions  of  the  will  of  foreij^n  nations,  where  to 
learn  whether  war  or  peace  was  inteu<led,  whore  to  demand  redress  for  injuries,  and 
where  to  visit  injuries  unredressed,  lint  all  thissyst(!ni  was  invertedand  tlirown  into 
cnnfusion,  if  the  <;overnment  miy:ht  act  in  one  way  and  the  nation  in  another.  All 
this  system  was  at  an  end  if,  while  wt;  were  professedly  at  peace  with  Spain,  she  was 
to  he  attiicked  by  a  lar^^e  army  of  nnlitary  adventurers  from  our  own  shores,  a  sort  of 
iftra-)ialioiial  body — uttt'rly  irresponsible,  utterly  invulnerable,  except  in  their  own 
persons — for  whose  acts  no  redress  could  be  demanded  of  the  Ibitisli  f^overnment — 
who  nnght  burn,  pillaije,  and  destroy,  then  lind  a  safe  asylum  in  their  own  country 
and  leave  us  to  say,  '  We  have  performed  our  en<;af;enients — we  have  honorably  main- 
tained our  neutral  character."'     (1'.  \2V.i.) 

He  said  further : 

"It  was,  besides,  to  be  rcmend)ered.  that  an  exact  precedent  for  the  j)reiscnt  meas- 
ure was  supplied  l)y  the  act  to  which  the  honorable  <jfentleman  opposite  (Mr.  Scarlett) 
had  referred  :  the  act  for  preventiii}'  the  exportation  of  arms  and  ammunitiim  without 
the  royal  license.  There,  as  here,  the  Crown  possessed  a  preroj^ative  by  tlit!  common 
law,  and  there,  as  here,  vou  added  facilities  for  tin;  exercise  of  that  prerogative  by 
statute."  (T.  !•>.'>( ).) 

When  the  House  divided,  there  appeared,  ayes,  IDt);  noes,  I'ii). 

On  June  'iS,  HIH.  upon  his  motion  to  connnit  the  bill,  Earl  Bathnrst,  supporting  the 
hill,  said : 

"The  snpplyinj;'  bellifieit-nts  with  warlike  st(n('s,  and  e(iuippin<;  vessels  for  warlike 
purposes,  Avere  also  ]»roliil»ited.  With  respect  to  this  part  of  the  bill,  he  had  heard  no 
olijeetiou  from  any  <iuarter.  The  evils  exju'rieiu'ed  in  connneri;e  from  vessels  roaminy 
liver  the  seas,  under  unknown  and  unacknowledj^ed  lla^fs.  hail  been  too  j^enerally  felt 
to  supposf!  that  British  merchants  would  be  much  dissatisfuid  with  the  regulations 
provich'd  by  this  part  of  the  bill."     (l*.  i:W(t.) 

He  said  further: 

"  Lookin;;',  then,  to  the  princiides  and  jjrounds  ol"  jicniM'al  i)olicy,  he  would  say  :  that 
he  should  scarcely  look  for  any  <»ther  detinitionof  a  state  incaiialde  of  maintaining;  the 
lelations  of  peace  and  anuty  with  othei'  pi>wt!rs  than  this,  that  its  subj(!cts  made;  war 
at  iileasure  upon  states  with  whom  their  j;(>vernment  was  at  j^'ace,  and  without  any 
interruption  from  that  ffovernmeut  to  their  jiursnits.  And  yet  such  had  lieen  for  some 
tinu'  the  actual  situation  of  this  country."     (I'.  V.\f*0.) 

He  said  further: 

"What  would  the  British  merchants,  wlio  jtetitioned  a;;ainst  this  bill,  say  if  they 
saw  expeditions  sailing  from  French  i)orts  to  attsick  tln^  sources  of  our  comnu'rco  iu 
every  (piarter  of  the  world  .'  He  was  afraid  we  should  not  be  much  benelited  by  its 
liein;;  left  to  the  option  of  French  olhcers  to  engage  on  either  side,  according  to  their 
individual  opinions."     ( 1*.  VM.i. ) 

I'tnd  Holland,  opposing  the  bill,  said  : 

"As  an  argument  in  favor  of  the  present  bill,  thc^  nidde  lord  has  said,  that  if  it  was 
not  passed  we  couhl  not  jneserve  our  neutrality.  Now,  he  (Lord  Hollaml)  would,  on 
the  eontrary,  uuiintain,  tliat  the  existing  laws  were  suttieient  for  that  i>urpose.     He 


I- •■-fa 


ir- 


234 


AKOl'MEXT    OF   THE    UNITEIJ    8TATES. 


'Bii- 


would  ovi'ii  niii  till'  liiizard  of  stantliiijj  up  for  the  iireiojjiitivo  in  this  case  agaiiinf  tlic 
iioltlo  hml."    (!'.  i:{l»l.) 

)lo  Hiiid  fiirth«T : 

''A  MovoriM;;ii  iiiij^ht  hv  calli'd  upon  l>y  out-  hcllif^crcnt  pinty,  vith  whom  lie  was  jn 
alliance,  to  jirovcnt  his  suhji'cts  from  tMitcrinj;  into  thf  sitn  ire  of  its  enemy,  so  as  in  li, 
employed  u^{ainst  it.  The  soveieiy;n  mi;i;ht  issm^  his  ]»ro(lamation  jnohiliitin;;  lii« 
HiilijectH  from  enlistinj;;  and  if  they  did  so  after  that  proclamation,  they  would  In 
guilty  of  a  hi^h  misdemeanor  and  mi;;lit  Im  juniished  accordinijly.  Hut  this  was  all 
tlftit  a  belliifcrent  state  could  ask.  It  could  not  demand  from  the  siiverei};n  a  cliaiii;. 
in  the  municipal  laws  of  his  dominions,  or  a  modilication  of  them,  to  suit  its  commii- 
ieueo.  The  noble  earl  had  said:  'Look  to  the  United  States,  and  see  what  they  Jiavr 
done  ;'  but  lus  had  not  adverted  to  the  dilfenuice  between  the  power  of  the  executive 
in  this  country  and  the  ■  .Mcrican  I'nion.  Tlu!  President  of  the  rniled  States  had  imt 
the  j)ower,  like  the  sovereiy;n  of  En<j;land,  of  makinj;  i)eace  and  war;  and,  therei'mv 
as  the  exiicntive  had  not  tins  rifj;ht  of  enforcinj;  peace,  a  fmcijjn  state  liad  I  lie  riy;lit  m 
demandin;^  a  law  from  the  leji;islature  to  i)revent  war.  Tlie  exami^le  of  the  I'liitcil 
♦States  was,  therefore,  no  precedent  for  >is,  where  tht<  prerov;ative  siheady  pos.se.H.scd  tin 
ri^ht  which  a  particidar  law  was  tiuMe  requisite  to  confer."     (1*.  HUU.) 

The  bill  on  this  day  went  through  the  committee. 

II.— LOKI)  ALTHORl'S  MOTION  FOR  THE  IJEPE.VL  OF  THi:  FOK'EKJX  ENLIST 

MENT  ACT. 

Mnliiili     to     rt il 

-unit  Ai't.""  '  "  Debate  in  the  House  of  Commons,  on  the  itith  day  of  April,  l^'iH.  (S(( 
Hansard's  Parliamentary  Debates,  second  series,  vol.  viii,  pp.  lUID-Ki.Vt, 

Mr.  Canning;,  opjiosinii  the  motion,  said  : 

"Sir,  the  a<'t  is  divi<led  into  two  plain  and  distinct  ]>arts;  tht^  one  pr(diibitinn  Ihit- 
isli  sjibjocts  from  enterinjjinto  the  military  service  of  bellij^ercnt  states;  theotiicr  t'm- 
bi<ldinK  the  littiufj  out  of  jjrivateers  for  the  service  of  those  states,  in  Jiiitish  jioit^. 
with  IJrifcislimeans  ami  nuim-v,  or  which  are  to  be  manned  with  Ibitish  seamen."  ^1'. 
10.'>'> ) 

lie  Haid  further : 

"If  I  wished  for  a  f^'ii'lc  i"  ^  system  of  neutrality,  I  should  take  that  laid  down 
by  America  in  the  days  of  the  presidency  of  Washin^tcm  and  the  secretarysliij)  m 
Jefferson.  In  179^  complaints  were  made  to  the  American  GovernnuMit  thai 
French  ships  were  allowed  to  (It  out  and  arm  in  American  ]iorts  for  the  puriins. 
of  attacking  ISritish  vessels  in  direct  op])osition  to  the  laws  of  neutrality.  Immediately 
upon  this  representation  the  American  Government  held  that  such  a  tittiii<: 
out  was  contrary  to  the  laws  of  neutrality;  and  orders  were  issued  itrohibitinj;  the 
arming  of  any  French  vessel  in  American  pmts.  At  New  York,  a  French  vessel  lit  tin;' 
out  was  seized,  delivered  over  to  the  tribunals,  and  condoinned.  Upon  that  occasimi 
the  American  Government  held  that  such  fitting  out  of  French  ships  in  American  poits. 
for  the  i)urpose  of  cruising  against  English  vessels,  was  incompatible  with  the  sover- 
eignty of  the  United  States,  and  tended  to  interrupt  the  peace  and  good  understanding; 
which  subsisted  between  that  country  and  Great  Hritain.  Here,  sir,  I  contend,  is  the 
princijilo  of  neutrality  uj)on  which  wo  ought  to  act.  It  was  upon  this  principle  that 
the  bill  in  ([uestion  waa  enacted."    (P.  1050.) 

lie  said  further : 

"  Wliile  wo  declare  ourselves  neutral,  let  us  avoid  passing  the  strict  line  of  demai- 
kation.  When  war  comes,  if  come  it  nni.st,  let  us  enter  into  it  with  all  the  spirit  ami 
energy  which  becomes  us  as  a  great  ami  indtipendeiit  state.  That  period,  however.  I 
do  imt  wish  to  anticipate,  and  much  less  desire  to  hasten.  If  a  war  must  come,  let  ii 
come  in  the  shape  of  satisfaction  to  be  (h'lnanded  for  injuries — of  rights  to  Ix;  iis- 
sorted — of  interests  to  be  protecte<l — of  treaties  to  be  fulfilled.  Hut,  in  God's  name,  let 
it  not  come  on  in  the  paltry  pettifogging  way  of  fitting  out  ships  in  our  harljoivi  tn 
cruise  for  gain.  At  all  events,  let  the  country  disdain  to  be  sneaked  into  a  war.  Lit 
us  abide  strictly  by  our  neutrality,  as  long  as  we  mean  to  adhere  to  it ;  and  by  so  do- 
ing we  shall,  in  the  event  of  any  necessity  for  abandoning  that  system,  be  tin;  liettei 
able  to  enter  with  effect  upon  any  other  course  which  the  policy  of  the  country  iiiiiy 
require."     (P.  10.">7.) 

When  the  House  divided  there  appeared  for  the  motion,  110  ;  against  the  niotiou, '.21'' 

III.— THE  AFFAIR  AT  TERCEIRA. 

Debate  in  the  House  of  Commons  on  the  '2Hth  of  April,  lH:i(».     (See  Hansard's  Parlia- 

mentarv  Debates.  New  Series,  noI.  xxiv.  iip.  1'2()-*214.) 

The  resolutions  ln'fore  the  house  wen^  as  follows  : 

"  That  luior  to  the  12th  of  December,  \'*IS,  Her  Majesty  the  (^neen,  Donna  Maria  II. 

had  been  recognized  by  His  Majesty,  and  the  other  great  powersof  Europe,  to  be  lejiiti- 

mate  Queen  of  Portugal ;  ami  that  at  the  period  above  named  the  said  Queen  wa* 


NOTK    n. PAUMAMKNTARY    DliMATEH. 


235 


•v.: ' 


ifsiiliii;:  ill  Miis  country  Jiiid  liad  licon  received  by  His  Mnjrsty  witli   tlic  .iicustoined 
liiUHH'*  ol'  ln'i'  loyiil  niiik. 

"'i'liiit  on  till'  siiid  I'Jtli  of  J>fi('nil»er  tlio  inlaiid  of  Terceiiii,  imrt  of  tli(5  doininionsof 
thi^  (/nceii  of  rortii^al,  was  j;overned  l>y  autlioriticM,  civil  antt  l<';i;;al,  in  alle^fiaiico  ti» 
11,..-  Majesty. 

"That  on  the  said  I'itli  of  December  instrnetions  were  n'^'"!  ''.v  tlie  I^ords  foniniis- 
sioners  of  the  Admiralty,  statin;^  that  a  considerable  iiiiml>er  of  J'oifnunese  soldiers 
1111(1  other  foreigners  were  almiit  to  sail  in  transports  from  Plymouth  to  l"alinouth,  and 
It  is  siijuiosed  they  intend  makinfjf  an  attack  on  Terceira  or  other  of  the  West- 
I'lii  Isles  ;  and  Jlis  iMaJi  sty  having  been  pleasetl^to  coniinand  that  a  naval  force  should 
Ik;  iiMme«liately  disj)at(hed  to  interrui»t  any  such  attempt,  yon  are  hereby  reiiiiirod 
anil  directed  to  take  ship  and  sloop  named  in  the  nmr^in  under  your  command  and  to 
in'oieed  with  all  ]na(tical  exi»editioii  to  Terceira  ;  and  havin;j:  ascertained  that  you 
liavi'sncceeded  in  reaohin;;  that  Island  before  the  transi»orts  alluded  to,  you  will  re- 
iniiiii  yourself  at  (►n^ra  or  I'raia,  or  cruisini^  close  to  the  island  in  the  most  ailvisable 
liiisitioii  for  intercept in;^  any  vessels  arriving;  otf  it,  and  you  will  detach  the  other  ships 
as  VDU  shall  deem  best  for  preventing  the  aforesaid  force  from  reachinjj  auy  of  the  other 
islands. 

"  I'hat  on  the  airival  of  the  naval  force  sent  to  Terceira,  in  ]iiirsuance  of  these 
instructions,  the  commandinj;  othcer  found  that  island  in  iiossession  of,  and  {governed 
h\,  the  authorities  altove  mentioned. 

''That  in  the  be;;innin<f  of  .January,  l""-2l),  a  number  of  P(utii;u;nese  subjects  or  sol- 
ilii'is  of  her  said  Majesty,  viduntarily  left  this  country  with  a  view  of  repairin;^  to  the 
said  island,  iind  that  their  departure  and  destination  were  known  to  His  Majesty's 
(iovirnment ;  that  they  api>ear  to  have  embarked  and  sailed  in  unarmed  merchant- 
>liilis,  to  have  lieeii  niiacconij>anied  liy  any  naval  force,  and  themselves  without  any 
ai'insiir  ammunition  of  war. 

"That  these  nnarnied  merchant-shi|>s  and  i)asseu<;ers  were  prevent(>d  by  His  MaJ- 
isty's  naval  forces, sent  for  the  jjui'iiose,  from  enterin;^  the  harbor  of  Porto  I'raia  ;  and 
tliat  after  they  had  been  liri'd  into  and  blood  had  been  spilled  they  were  comiielled, 
miller  threat  of  the  further  use  of  force,  aijain  to  jiroceed  to  sea,  and  warned  to  quit 
till'  iii'i>;hb(uhood  of  Terceira  and  the  rest  of  the  Azores,  but  that  they  might  inocoed 
wiiiTcver  else  they  nnght  think  proper. 

"That  the  use  of  force  in  intercept inj;'  tliese  unarmed  vessels,  and  preventing  them 
aiicliDring  and  landing  their  passengers  in  the  liarbor  of  Porto  I'raia,  was  a  violation 
iif  the  sovereignty  of  the  state  to  which  the  Island  of  Terceira  belonged  ;  aiid  that  the 
further  interferenc(>  to  comi)el  those  merchant-ships  or  transports  to  ijuit  the  neigh- 
limhimd  of  the  Azores  was  an  assumption  of  Jurisdiction  upon  the  high  seas  neitlier 
jnstitied  bv  the  necessities  of  the  case  uor  sanctioned  by  the  geueral  law  of  nations." 
il'p.  l-.'ti,  I '27). 
During  the  debate  Mr.  Secretary  Peel,  s]ieaking  against  the  resolutions,  said  : 
"The  next  question  for  consideration  was  the  character  of  the  expedition,  and  his 
lijilit  honorable  friend  contended  th.at,  going  unarmed  from  our  shores,  the  refugees 
wire  not  to  be  considered  as  a  military  body,  and  that  their  conduct  was  no  breach  of 
iiiir  neutrality.  Was  it  then  to  be  contended  that  no  expedition  was  a  military  ex])e- 
ilitiou  except  the  troops  ha<l  their  arms  on  board  the  same  vessels  with  them  1  If  they 
wtiT  on  board  one  vessel,  and  tlunr  arms  in  another,  did  that  make  any  «lift'ereuce  f 
Was  such  a  pretense  to  be  tolerated  by  that  common  sense  to  which  the  Honorable 
liaronet  had  appealed,"  (P.  I'JH.) 
lie  said  further: 

"Anns  were  already  i)rovided  for  them  at     Terceira ;    the  nicn   were  proceeding 
tliitliir  for  the  )mri)os(!  of  using  the  arms,  and  no  jterson  could  for  one  moment  doubt 
what  was  the  real  nature  and  character  of  the  expedition."    (P.  198.) 
He  said  further: 

"  It  was  not  necessary,  he  believed,  further  to  discuss  the  question  whether  the  ex- 
iM'ilition  were  or  not  a  breach  of  our  neutrality;  and  conctuviug  that  it  was,  the  next 
i|uesti()n  which  required  to  be  settled  was,  whi'ther  or  not  we  were  justihed,  after  the 
I'Spi'dition  had  left  our  ports,  in  preventing  it  from  reaching  the  i)lace  of  its  desti- 
nation. On  that  point,  he  thought,  a  conqdete  answer  to  the  statement  of  his  right 
liimorable  friend  who  opened  the  debate,  had  been  given  by  his  right  honorable  friend 
wild  sat  near  him.  The  I'ortugucse  refugees  and  their  leaders  had  throughout  been 
^nilty  of  the  grossest  decei)tion  toward  tlie  British  Government.  It  had  been  such 
:w  to  Justly  subject  them  to  the  treatment  they  had  received."  (P.  200.) 
He  said  further: 

"  Were  the  (Jovcrnment  of  this  country  to  allow  itself  to  be  deceived  in  the  way 
these  refugees  had  deceived  it,  the  ports  of  England  would  be  selected  by  all  the  dis- 
•  ontented  people  of  Europe  to  fit  out  and  prepare  expeditions  against  their  govern- 
iiientN;  or  even  expeditions  to  plunder  and  devastate  other  conntries.  It  might  be 
true  that  wo  had  no  right  to  punish  the  Portuguese  for  their  fraud,  but  we  had  a  right 
to  prevent  them  profiting  by  their  fraud,  particularly  when  doing  what  might  have 


L%  -'£. 


M 


f!' 


2;]6 


AROl'MENT    OF    TlIK    IMTKU    STATKS. 


iiivdlvt'd  lis  ill  ii«i>nti'st  with  aiiotluT  )io\vcr  on  iu-tHiiuitof  tlio  biviich  of  our  iitiilnility 
(•(Hiiiiiiltcd  liy  tlu'Mf  in'oph'."     (I'.  "Jdd.) 

I  If  sjiitl  riii'tlicr: 

"Nt'iitralN  siiiill  not  MiitVt'r  tlifinsdvcs  or  tlicir  possrsHioiw  to  In-  mail)'  iiiHtniiiniitai 
in  (loiiij;  injury  to  otlmr  nations.  Tiicru  is  no  law  of  natiirr  or  of  nations — no  ol»iij;i|. 
tion  of  Jiisticc— which  coiKicinn  iis  to  he  tiiii  (Iii|h's  ol  tliosc  wlio  woiihl  1(  ail  lis  into 
siii'ii  wroiijj;.  That  was  tin'.  thictriiK'  iio  would  ai)ply  to  lln-  pifsfiit  case — wc  were  ikii 
to  be  inad*^  th(f  dupes  of  t.liese  people,  to  coniniit  wroiiij  aj^ainst  another  jiower.  Itiii 
the  (•(MlseiineiK'es,  he  helie\ cd,  of  sllell  proceedili;is,  did  we  permit  tlielil,  would  lie  fM|;il 
to  ourselves.  If  we  siijiported  or  allowed  fraud  we  should  have  no  remedy  hiil  to 
submit  to  it  w  hen  oiirow  n  ri^ihts  were  in  <|  nest  ion.  !f  we  allowed  one  hostile  expedition 
to  be  pie])ared  within  our  territory,  ten  years  would  not  elapse,  to  use  the  remarUaMc 
words  of  Mr.  ('aniiin^  in  the  deliate  on  the  Alien  ISill,  '  liefore  this  country  will  lir 
made  the  work-shop  of  intrione,  and  the  arsenal  (d'ev.-ry  malcontent  faction  in  I'.niopc. 
IMaced,  as  this  country  is,  on  the  <'onfines  <d' tlu;  (Md  Woi'ld  and  the  New,  posses>iii;. 
such  facilities  in  lu.'r  maniifaetnres  and  in  her  natural  advanta;;es,  and  abov(>  all,  in 
her  free  institutions,  for  the  juirposes  of  hostility,  it  be(M)mes  her  to  watch  with  tin' 
narrowest  scrutiny  that  the  facilities  she  alfords  are  not  abused  to  lier  own  injiii  v." 
(l'.'.2(ll.) 

Jle  said  further: 

"He  remembered  that  when  he  was  sittinj;  by  the  sidi'  of  ilr.  Canninjj,  as  his  cnl- 
k'a<;ue  in  olllice,  that  it  was  stated  Ity  that  ri;;lit  honorable  (ieiitleman,  shortly  bcfmr 
the  Alien  Act  was  brouoht  forwaid,  and  when  Ministers  weie  c(msideiinif  of  the  pio- 
])ricty  of  abandoning;  it  altogether,  that  inforniation  had  been  obtained,  and  he  knew 
it  to  be  correct,  that  the  Spanish  eonstitiitionalists — the  martyrs  to  liberty,  as  the  lion 
orable  baronet  called  them — had  resolve<l  to  fmueiit  internal  disorders  in  the  domin- 
ions of  Spain.  Mr.  Caniiiu^;  stattMl  in  the  House  that  he  did  not  allow  a  day  to  elapse. 
aftt-r  learninji  this  fact,  witlumt  notifying  to  the  persons  earryiii;;  on  these  intri;,ni(s 
that  'the  (Jovernment  would  not  allow  them  to  desecrate  the  asylum  the^  had  ehosiMi 
for  their  protection,'  and  at  the  same  time  he  yave  information  to  tlio  (io\  ciiior  of  tin 
Spanish  ]n'ovinc(;  threatened  by  these  machinations  of  what  was  K<''"«  o"-  ^I'-  ^'"i'- 
ninji  said  that  it  was  ridiculous  to  siipjiose  that  if  wo  authorized  such  a  lint^  of  con- 
duct we  should  not  have  to  ]»ay  the  penalticis  of  hostility.  For  the  intc^rest  and  peace  ol 
this  country — not  less  than  for  tin,'  interest  and  ixsace  of  othtu'  countries — he  eiifordil 
on  all  those  who  resided  here  tlit^  strictest  iiiMitrality,  MJod  know.' he  said,  '  wlnn 
Avo  slumld  see  the  vml  of  the  ])revailino:  aj;itatioii,  when  the  struoj^le  of  opinions  would 
terminate;  and  no  man  cmild  wish  for  it  mort^  than  ho  did  ;  but  ht^  claimed  tliese  bills 
in  order  that  wi-  mij;lit  not  be  fooled,  ^fulled,  bullied,  cheated,  or  deceived  into  hostilities 
into  which  we  never  iiiteiidiMl  to  enter.'"     (I'.  'Ml.) 

He  said  further: 

"As  lonn;  as  Kiij^land  remained  at  yieace,  she  mi,!;ht  Ixs  an  asylum  to  the  uii;iirtuiiiito. 
ji  refuj^e  to  the  (listressed,  and  a  retniat  to  those  who  wore  weary  and  i,"aviU-  laden, 
where  they  jni;iht  lay  down  their  burden  and  be  at  rest.  I{ut  to  miiintaiii  our  iiiili'- 
peudence,  to  preserve  the  power  of  beiufj;  this  place  of  rtd"iige,  it  was  necessary,  to  use 
the  words  of  ,Mr.  Canning;,  that  'we  should  not  bo  fooled,  gulled,  bullied,  cheated,  nr 
deceived  into  hostilities;'  and  in  order  to  prevent  such  a  result,  he  hojied  the  lioiise 
would, join  with  him  in  rejectini;'  the  resolutions  which  had  been  jn'oposed,  and  wliieli 
were  neither  more  nor  less  than  a  severe  t^ensure  on  the  (loudiict  of  those  who  had  pre- 
vented En<;land  from  biMiij;- cheated  into  hostilities."     (]'.  •iU'J.) 

Mr.  Huskissou,  siieakin^f  in  favor  of  the  resolution,  said  : 

•'But  havinjjf  evaded  our  laws,  wo  had  no  ri;;ht  to  jiiinish  them;  we  mi^fht  have  some 
authority  ovi'f  them  as  lony  as  they  wen;  within  our  Jiirisdietiou,  but  the  coinphuiii 
made  ajrainst  them  jnoved  that  they  had  escaiu'd  beytmd  the  limits  which  the  laws  ol 
nations  reeoo'iiized  as  the  limits  of  our  jiowim-."     (F.  "idS.) 

When  the  House  divided  there  appeared  for  the  motion  7-';  afj;ainst  it,  11)1 ;  miijoritv, 
113.     (F. -ii:!.) 

IV,— THE  FOREIGN   ENLISTMENT  ACT  OF  AUGUST  d,  1870. 

Debates  in  Parliament  on  the  passaj;e  in  the  House  of  Commons,  lst,;{d,  4th,  and  ."itli 
i-<.rir.n-eni-tni...,t  Aujiiist,  Ifi/O.  (Seo  Hausanl's  Farliameutary  Debates,  third  series,  vol. 
""  "  r«r».  '  ceiii,  pp.  i:Ui.')-l;i"<l,  i)p.  l.">OJ-l.")i;},  pp.  l.'Md-io.jl!,  p.  ir>>>».) 

In  the  House  of  Coinnums,  8th  Aujxiist,  l.>:*7(».     (Seo  ibid.,  pp.  1()7G-1C8(I.) 

On  1st  Aiif^iist,  1870,  on  the  order  for  the  socotid  reading  of  the  bill, 

The  Attorney  General,  Sir  K.  F.  Collier,  said  : 

"I  think,  however,  the  house  will  aifiee  that,  upon  the  breakiu^  out  of  this  luiex- 
pected  and  most  calamitous  war.  Her  Majesty's  Government  would  have  been  very 
much  to  blame  if  they  had  delayed  for  a  single  day  to  introduce  this  measure."  (!'• 
i;«!7.) 

He  said  furtlier  : 

"  I  now  come  to  deal  with  the  question  of  the  equipment  and  littiug  out  of  vessels, 


NOTK    II. rARI.IAMKNTAUY    DKUATKS. 


2;57 


itUIKltl'. 

V  latli'ii. 
)iir  iiiilc- 

I'V.  to  llSl' 

Mtl'il.  (IV 

llO  llllUSI' 

il  whiili 


;lVt'   SOlll'' 

•onil'liiiut 
ic  laws  ol 

iiiai«>vitv. 


li,  ami  ."itli 
■  rii's,  voi. 


:.lii.s  luiex- 
l)ocu  very 
are.-'    (!'• 

)f  vessels. 


Tsitli  rt^siHict  to  wliicli  tluMti  Iuih  ln't<ii  so  iiiiu'li  litiKntirm.     To  thiHsiM'tionof  tln'oM  Act 
a  vt^y  important  luhlitioii  Iiuh  hft'ii  Hiij;j;t'."*tt'tl  l»y  thn  ('ommissioiit'is,  to  the  ctVert  tliiit 
it  slioiiM  ii])]>ly  not  niorcly  to  tlin  arniiii;;  and  t>i|uip|iin;;,  hut  to  tlic  Itnililin^  ot'a  hIiJ)). 
J'liiit  I't'coinint'intlation  was  niaiU)  by  all  tin;  C'oniiniHNJoncrs,  witii  lln*  rxcnption  of  my 
lidiioraltli"  and  l«-arntul  Fricndtlio  M»'ml«)r  for  Oxford,  (Mr.  Vormiu  llarcoiirt,)  forwliosc 
aiitliority  I  liuvo  Mid  ^n^atttNt  rrs|M>(;t,(iltlioii;;h  I  tliink  that  lix,  in  tli)>  prfNcnt  inHtancc. 
WHS  wrtinjj,  and  that  tho  majority  of  tlic  (,'oiiMnis,Hioni'r.s  wcrt'  rlf;ht.     If  sncii  a  jtrovi.s- 
loii  were  contained  in  tli«icxiNtiii;;act,  the  Alahanniconld  not  liavecscapcd  iinil  tint  Alcx- 
iindra  mnst  have  been  condcnnicd.    It  ohvioiinly  i.s  very  nnsati?tfactory  fora  (jiovernment 
to  lie  aware  that  a  veswl  in  heini;  hnilt  fora  hellijferent,  to  know  her  destination,  to  have 
to  wait  day  aftt^'  day  till  she  is  eouiph'ted,  and  tlienone  tineniornin;;  to  lind  that  sh<>  is 
irone.    Now,  that  has  more  than  onee  occurred,  and  it  is  desirable    that  it  shonid  not 
iiccin' a^ain.     Then!  is   also  a  )»rovisioii    in  this  sectioir  which  touches  the  case  of  the 
iiii>i'e<liHi)atehes  of  a  vessel,  and  a  claiisu containing  a  provision  to  tlieelfect  thtit  if  it  is 
slidwn  that  a  vessel  has  been  ludered  to  be  built  for  a  belli;;erenl,  and  is  su|))>lied  to 
tliat  bellij{crent  and  nsei,  t  ir  warlike  jtnrposes,  that  shall  Im  held  to  be  fnima-fiiiif  evi- 
iltiice  tliat  she  was  bnilt  for  the  warlike  service  of  the  bel]i;;erent,  nidess  the  innocent 
(loHtination  of  the  vessel  can  be  established.     In  a  provision  of  that  kind  there  is,  1  ap- 
\ireliend,  no  hardshi))."     (1*.  l:i(W.) 
lie  said  further: 

"  1  have  now  to  call  att(^ntion  to  a  very  important  power  which  we  ))ro]ios»i  to  jjive  by 
the  bill.  It  is  the  power  which  it  confers  on  the  St(cn;tary  of  .State,  on  his  bein;;  satis- 
lii'd  tliat  a  ves.sel  is  bein^  built  orei|uipped  for  the  service  of  a  foreiirn  belli^rerent,  and 
is  about  to  bti  dispatched,  to  issue  his  Warrant  (trderinj^  lier  to  be  seized  and  detaiin'd, 
wliich  Warrant  is  to  be  laid  on  tli«  Table  of  the  House.  It  is  further  provided  that  the 
(iwiier  of  a  vi'Hsel  may  a)>i>ly  to  the  Court  of  Admiralty  for  her  ndease,  which  he  may 
iilitaiu  if  he  satisties  the  Court  that  her  destination  was  lawful,  undnot  only  nuiy  be  ob- 
tain her  release  but  damages  for  lit^r  retention.  In  order  to  prevent  any  hardship,  there 
is,  moreover,  a  provision  that  tiie  Adndralty  .shall  release  the  v»'s.sel  on  a  bond  beinjr 
^iven  that  she  is  not  to  be  employed  on  any  illejjal  adventure.  There  is  auotlmr  pro- 
vision in  re.sjtect  to  wliich  the  Bill,  I  admit,  <;o*'m  beyond  the  recommendation  of  the 
C'oiniuissioners.  It  >;ives  powt-r  to  tlie  hx^al  authorities  named  in  it  to  seize  a  vessel  if 
tiicy  have  reason  to  suppose  slu;  is  about  to  escape,  but  then  they  will  havt>  to  report 
iniiiuMliately  the  seizure  to  the  secretary  of  state,  who  will  ))0  onii»oweiod  at  once  to  re- 
lease her  shoidd  he  bo  of  opinion  that  there  were  not  suflici«'nt  grounds  for  the  seizure, 
and  assuuun<>'  the  vessel  to  have  been  seized  without  n-asonable  cause,  and  reh;a.sed 
liy  the  Secretary  of  State,  the  owner  will  be  entitled  to  claim  damajjes  for  the  detention. 
Tliese  are  the  provision.s  by  whieii  we  jiropose  to  attain  the  object  which  we  have  iu 
vii'W.  and  to  render  extremely  ditlicnit,  if  not  ahuost  impracticable,  the  escape  of  any 
>ii(li  ves.sel  as  the  Alexandra  or  the  Alaliama  in  future."  (1*.  I'M'A).) 
Mr.  Stavcly  Hill,  8ui)portiii<;  the  bill,  said: 

"  It  w  as  very  necessary  to  pnivent  tins  recurrence  of  what  haj>pened  duriuj;  the  Ameri- 
lan  War,  when  this  coinitry  was  made  a  starting  point  for  a  ship  of  war  which,  as  had 
i)i(ii ajttly  remarked,  was  an  exiiedition  in  itself."     (T.  l:?7'.i.) 
Mr.  Vernon  Ifarconrt,  sni)p(n'tin<r  the  bill,  said: 

"The  present  law  for  enforcinji:  neutrality  was  utterly  insntlicient.  No  one  could  dis- 
sent from  Lord  Kussell's  des(!rijttion  of  the  ca.se  «)f  the  Alabama — tli  ,t  it  was  a  scindal 
Kitlie  law  of  this  country,  and  that  the  persons  who  were  concerned  in  that  disastrous 
traufl  upon  the  laws  of  this  country  committed  one  of  the  luo.st  unpatriotic  acts  of 
which  an  Eiifrlishnuin  had  ever  been'<;:uilty."  (P.  1374.) 
lit-  said  furtiier : 

"Ibit  he  would  venture  to  say,  what  lie  was  sure  would  be  confirmed  by  his  honorable 
and  learned  Friend  theMendier  for  Richmond,  (Sir  Koundell  Palmer,)  and  by  the  Vice- 
I'li'sident  of  the  Council,  lioth  ;jf  whom  were  members  of  the  Comtni8.sion,  that  the 
oiiiniou  of  that  body  wa.s  that  what  was  re(|uired  was  to  extend  and  eularKC  the  pre- 
ventive jtower  of  the  law  rather  than  to  ajj;;?ravate  its  punitive  provisions.  There  were 
two  (ilijects — to  prevent  the  offense,  and  t(»  punish  it  when  committed.  The  use  of 
imnishmeut  was  small  save  so  far  us  it  would  act  as  a  deterrent."  (P.  KJ74.) 
He  said  further: 

"He  regretted  that  the  i)nnitive  clauses,  which,  in  certain  states  of  ]»ublic  feeling, 
cnnld  not  be  carried  out,  had  been  ninlti]>lied,  and  that  the  strength  of  the  Bill  had  not 
lieen  thrown  into  tlie  preventive  clauses."     (P.  1375.) 
He  said  further : 

"The  Attorney  General  had  stated  that  it  was  his  intention  to  strike  out  clause  11, 
which  was  iu  tended  to  prevent  the  hospitality  of  their  ports  being  extended  to  vessels 
Hiat  had  illegally  left  that  country,  on  the  ground  that  ho  thought  its  object  would  be 
'•;'tter  carried  out  by  means  of  a  regulation  to  be  enforced  by  the  Executive.  He  (Mr. 
^ernon  Harcourt)  entirely  agreed  with  the  necessity  that  existed  for  the  enforcemeut 
"f  some  such  regulation,  because  he  believed  that  had  the  Alabama  been  excluded  froiu 
mv  ports  after  she  had  escaped  from  this  country  the  ditliculties  that  had  arisen 


T 


'!| 


,'i- 

•/«!&-., 


288 


ARGUMENT    OF   THE    UNITED    STATES. 


'JjjSMl! 


Itetween  this  coimtry  and  America,  in  reference  to  that  vessel,  would  have  been  avoided." 
(P.  i:J78.) 

Mr.  Uathliono,  snpportinf;  the  bill,  said  : 

"  In  the  name  of  tlie  mercantile  ctmimiuiify,  he  thanked  tl\e  Government  for  introdnc- 
infj  this  Bill,  wliieh  only  carried  out  the  ])olicy  which  tin  ship-owners  of  Liverixiol 
pressed  on  the  Government  of  the  day  very  s^ton  after  the  escape  of  thts  Alaliaiiui." 
(P  i:?t;U.) 

Visconnt  Ihiry  said : 

"  He  could  not  aj;rce  with  ihc  honorable  >[ember  (Mr.  IJourke)  in  rofjarding  this  as  au 
ino[»portune  moment  for  brinj^irifj  f<u\vard  this  Hill.  The  fact  that  war  was  rajjiiij;  on 
the  Continent  was  no  reason  for  not  anicndinff  our  inuidcipal  law  in  jioints  where  this 
was  notoriously  defective.  It  was  ridiculous  to  say  that  a  builder  did  not  know  tliut 
the  vessel  he  was  buildin;;-  wiis^bu-  war  purposes;  antl  ii  was  a  less  evil  that  the  slii|i. 
buildiuj;  interest  should  sutler  a  little  than  that  the  whole  natiou  should  be  iuvohtil 
in  didiculties.''     (P.  i:Wl.) 

On  :{d  of  An<rust,  1H7(I,  upon  the  order  for  committee  on  the  bill,  the  solicitor-<j;eii- 
eral.  Sir  J.  1).  Coleridj-e,  saiil : 

"It  woulil  not  occur  in  one  case  out  of  a  thonsauft  that  tli>-  '...ulib'r  o."  a  shi()  would 
have  tlu'  small'.'st  dillieulty  in  proviu;;-  what  his  contract  was  and  under  what  cininn- 
stances  it  was  undertaken."     (P.  l.'tHi.) 

He  said  further: 

••'I'he  object  of  th<(  danx  was  to  prevenr  the  esca{fe  of  suspected  ships  I'nuii  tlic 
harbors  of  the  kinj;doni  till  the  secretary  of  state  had  been  comninuicated  with.  The 
clause  K'lve  a.      d  hiUrim  power  of  seizure. "'     (P.  VtV2.) 

'J"he  Attor'K-y  General,  Sir  l{.  P.  t'ollier,  said: 

"  The  object  w:is  to  j^ivi^  power  to  any  otticev  who  saw  a  ship  about  to  escape  to  pre- 
vent sucii  c.scai>e.'     (P.  l.'iPi.) 

The  Attorney  General  said  further: 

"  Th;<  ohicers  name(l  would  be  able  to  seize  a  vess<'l  without  s|>ecial  instruction'-,  in 
(udcr  rhat  such  vessel  minht  not  be  allowed  to  escape.  Ii  was  a  most  ini|M»itiiiit 
power  but  it  was  only  to  Ite  used  in  case  of  enter;;ency,  and  if  any  wion<;  was  done  lij 
the  seizure  there  would  be  com[)ensation."'     (\'.  l.'PJ.) 

Mr.  Whalley  said: 

'■  He  ^^■ished  to  ask,  was  such  stringent  lejfislation  in  oraetice  in  anv  country  of  tin' 
world.'"' 

The  Attoriu'y  General  said: 

•' The  clause  svas  copied  from  the  merchant-ship)i'n|f  ar-.t,  which  had  been  in  (oivc 
for  twenty  years  without  any  eompliiint."     (!'.  b")r.i. ) 

On  the  4tli  of  Aufj;ust,  J "70,  tiie  bill  hein^  xiiider  consideration,  the  Attorney  (Jcnerii! 
Sir  K.  P.  Collier,  said: 

"  Ho  would  inopose  to  (Unit  '  \iuse  II.  This  clause  provided  in  etfect  that  no  war 
vessel  employ«!d  in  the  milittiry  or  naval  .service  of  any  bellJjrtM-ent  which  should  li;i\f 
been  built,  ei(uip[ied,  lit  ted  out,  ai'med.  ordispatclied  contrary  to  this  cna<:tmeutslioiiM 
be  admitted  into  any  poit  of  Her  Majesty's  tlominions.''  (Sivi  the  Keport  of  the  Coiii- 
missiou,  documents  with  the  I'nited  States  Case,  vol.  iv,  p.  f*'2.) 

Mr.  Dickinsmi  said : 

••  He  hoped  this  would  not  be  don(>,  otherwi.se  vt^ssels  corrcspondiu!;  with  the  .\la- 
biinia  conhl  be  snccore:!  in  our  colonial  ports.'' 

The  attorney-f^eiieral  said  : 

'■  He  liinl  to  explain  that,  althomih  the  royal  commissioners  made  a  reeommeudat','ni 
to  the  ellect  of  this  clause,  they  did  not  intend  that  it  ;:!;ou!d  be  emitodied  in  an  ait  ol 
I'arlianieiit,  but  that  it  should  )»e  caiiic-d  out  under  the  (Queen's  refjulatii>ns.  The  <;o\  ■ 
ei  nor  of  a  colony  would,  under  this  ( iausc.  have  to  determine  whether  n  ship  cnteiiii;; 
Ids  ports  was  illejially  fitted  out  or  not:  and  this  was  enoii!;h  to  show  the  object  tlii' 
comiiii.ssioners  had  in  view  could  not  be  carried  out  by  an  aci-  of  Parliament.  It  wii> 
inttMidt.'d,  instead,  to  iidvise  colonial  governors  of  the  escape  of  any  ilhj^a'iy-titted  ves- 
sel." 

Clause  struck  out.     (P.  1.").m.) 

Mr.  Caudlish  said  : 

"  He  wished  to  call  attention  to  clan  «.  "il.  'f  provided  that  any  custom-house  otlii  t  r 
niiyht  detain  a  susj»ected  shij),  so  thati  the  power  would  be  vesteil  in  a  tidewaiter  who 
received,  jierhaps,  Irt.^.  a  week.  This  was  an  extraordinary  power  to  vest  in  such  hands, 
and  he  would  propose  that  the  power  should  he  only  ext^rcised  by  the  chief  ollici  r  oi 
customs  in  any  port  of  the  United  Kingdom."  The  honorable  meu)ber  coucluilcd  hy 
movinji;  his  amendment.     (P.  l.'irtrt, ) 

Amendment  propo.se<l,  in  paji;e  ?*,  line  7,  *'  U>  leave  out  the  word  '  any,'  and  insert  IIk' 
words  '  the  chief,"'  (Mr.  Candlish)  instead  thereof.     (1'.  l.'n')*;.) 

Mr.  Alderman  Lusk  .said  : 

"  He  questioned  the  propriety  of  (rivin>?  so  much  power  to  custom-house  otticersct 
the  lower  claBs,  a?  was  pro)»<)8ed  by  this   bill  to  confer  on  them." 


The  attc 

•'  'I'hose 
iKiwcr  was 
(•(instable 
;iii(;d  to  th 
'i(  fiiicrjjei 
r.'siilt.     Tl 
ill  all  the  i> 
rhat  could 
'intaiit  th 
ileparture  i 

••(iMicsti( 
iiii'iit  iicgai 

(In  the  -^ 
(iiitit  Hali 

■■  lie  had 

Ithe  liill  ( 

mild  lie  ex 

:v)iculed  th 

■IlKVill  to  b( 

I  lown,  (Vol 
MaJcstN  wa 
iiltlc  and  L 
lii-  avowee 
:u'stion  no 
ijjii  coinitr 

■  xisted  in  t 

■  cut  their  s 
■"  IHidiibit 
''fllii.'cvcnt 
II-.    iHiriiij 
:iii!Ii(l  t((  be 
wiv  till'  ord 

lllIM.  icjich 

'  si/iiciit  at  I 

li'Mi ;  and 

■nliinials  re; 

•'•1.    They  \ 

ilili'i't  wo'.ih 

iiiissiiiii  prc.s 

iiifii."    (Pp. 

Hi;  said  fn 

"'I'la'  inea 

:Nii  'II  local 

'  i>i  'Xi  him 

'  iih  the  ex( 

''.IN  (lllji'ct    C 

l.iini  K'ed. 


hi  iiropos 

'•"Ills.   Mjiv 

.•'!' t;n--7oi  )- 

I.iiid  h'ede 
"The  .Soilt 
■111' ship,  'I'l 
'-i'  Ihi'  iujii 
■  iiihr  their  i 
'hi  iiioviiij 
!-''i.,r  .Jmu 
'iiiiil  .scries, 

'-•III  PllSSt 

Tlip.s*.  wt 

•With  re 

'"'Vi'nniicnt. 

i'l'Miiy,  ih;i. 

■•■'■<  ill  se\ era 

■■■fhat.  at 


NOTE  B. PARLIAMENTAKV  DEBATES. 


239 


■lit  sliolllil 
the  <'i)l!l- 


the  Alii- 


Tlit)  att<n:!<'v-t;«Mieral,  Fir  R.  P.  Collier,  said  : 

•Tliose  ottict'rsiii'  ciiotuiiis  woi",  in  fact,  tli«'  police  of  jiorts  and  harbors.  No  nioro 
imwcr  WIS  confcrri'd  ou  th«MU  by  ilio  bill  th;i;:  was  already  exercised  by  every  parish 
rdiistabie  throiifjhont  the  kiu^jdoin.  Jf  the  po^or  of  actiiij;  under  the  bill  w(!re  con- 
liiicil  to  the  chief  oiiir^or  of  customs,  as  was  propcjsed,  it  nii;;ht  hai)pen  that  in  a  rase 
nf  iiner<iency  that  othcer  woidd  bo  a''^".'nt,  and  serious  inconvenience  would  be  the 
i.'sult.  The  principlt!  of  the  clii.i.-se  was  in  oi.eration  in  thenierchant-shippinjii  act  and 
II  all  the  prize  acts.  He  ((uitoadniittetl  thiit  the  issue  was  nio'-  inipmtant  than  any 
iLiitcould  Vie  raistnl  on  the  nuMchant-shippinjj  act,  but  it  was  oecause  it  was  more  ini- 
'■:iitaiit  that  jureater  rcstric-tions  should  be  used.  The  fjreat  tliin<i;  was  to  prevent  the 
ilejiart'in'  from  our  ports  of  any  ships  of  tli<;  Ahibania  clinractrr."' 

■■(^Miestion.  That  the  word  'any' stand  part  of  the  bill"  put  and  ntincd  to.     .\niend- 
iiu'iit  iiigittictd.     (V,  UMi').) 
Oil  tlie  -th  of  August,  ld7(i,  the  House  of  Lords,  bein;f  in  coinniittee  on  the  bill,  Vis- 
(Mint  Halifax  said: 

•'  lie  had  refrained  from  enterinjj  into  any  explanation  of  the  object  and  jn'ovisions 

ttlie  bill  on  occasion  of  the  second  readiiiji,  on  accniiiit  of  the  small  attendance  whicii 

iriild  be  expected  at   a  .Saturday  sitting,  but  he  would    do  so  very  shortly.     Tlie  bill 

rcpeulcd  tlie  existing  law,  re-enacting  it  with  siicii    ini)>rovei:ients  as  experience   liad 

.li(p\vn  to  be  desirable.     It  prohibits  subjects  of  Her  ''la.jesty.  witiioiit  license  inm\  tlie 

iinwii,  from  taking  any  part  in  iiostililics    between  two  countries    with  which   Her 

\l:iji'stv  was  on  friendly  tci-ms.     Ma  need  Uiit  a<l(iiic(>  arguments  to  show  how  uiijiisti- 

iiUeand  monstrous  it  would  be  for  Jhitisii  subjects  to  take  part  in  hostilities,  wli.Mi 

iic  avowed    policy  of  tiie   government  was  that  of  jM^rfcct  neutrality ;  but  it    was.*, 

utstion  not  of  international,  but  of  municip;il  law — not  between  tliis  country  and  for- 

ij,'ii  countries,  but  between  the  (Jrown  aiiil  tlie  subjects  of  the  Crown.     .V  similar  law 

listed  ill  the  I'nited  iSt-tes,  wh'le.  on  the  continent,   governments  were  able  to  ))re- 

.xiit  their  subjects  from    .  iolating  neutrality.     Tlie  principal  objects  of  the  bill  wt-re 

tu  jiidliiliit  any  subject  from  enlisting  or  indnciiig  otiicis  to  enlist   in  the  service  of  a 

'iiflligi'veiit  jiowcr,  and  from  lifting  out,  et|ui|»ping,  or  arni';g  any  vessel  t'or  such  serv- 

II.    liming  the    Anicric.m  war,  the    powers  of  the  government  in  this  matter  vero 

icimid  to  l>e  insiillicieiit.     In  the  case  of  the  Alabama,  tlnit  vessel  left  this  country  bi-- 

i'iin-  the  order  of  the  go\  eminent,  issued  as  soon  :is  they  had  sutlicient  evidence  before 

■\n-]u.  leached  the  jiort ;  she  lelt  our  port  as  an  unarmed  ship,  and  only  received  lier  ar- 

.iiiiiciit  at  sea.  beyond  our  jurisdicti<ni,  so  tiiat  no  blame  could  attach  to  the  goverii- 

iHiit ;  iiiid  in    tlie  case   of  tlie   Alexandra  and  of  the  r.niis,  jiroceedings  before    legal 

■lilnuials  resulted  in  a  proof  that  the  government  had  not  siillicieiit  power  in  tin;  niat- 

n.    Tliey  wer.;   therefore  glad  to  buy  the  rams  in  order  to  avoid  any  ditlicnlty.     This 

'Irl'cct  would  be  removed  by  the  jireseiit' bill,  wliicli  was  based  on  the  report  of  a  coiii- 

ii;is«ii)ii  )»residrd  oNcr  by  the  late  l.cril  Craii\\'oii  u,  ami  composed  of  other  distinguished 

iiii'ii."    (I'p.  l(iT>,  l<ol».') 

He  saitl  fuitlier; 

■The  iiKMsiii"  gave  pov.er  to   the  secretary  of  state  to  detain  a  Husp(!ctod  ship  ;  as 

.;|s() '(I  Ideal  ollicers  at  the  iiorts.  who  would  rejiort   to  the  secretary  of  statt-.  so  as  to 

i>t  'II  him  full  respoiisibility.     It  embodied  all   the  reconinieiidations  of  the  report, 

villi  the  exception  of  that  relating  to  the  reception  of  vessels  into    British  ports,  ami 

'!iN  ohifet  couhl  be  acc(uiiplislied  by  orders  in  couneil."     ( 1'.  IbTii. ) 

l.iinl  h'edesdale  "  thtuight  the  late   introiliiction  of  this  bill  was    excusable,  as  the 
•signuy  w  likh  called  for  it  had  only  Just  arisen."     {V.  IbdO.) 


<»rticers  nl 


V,— Tin:  TK'EATV  OF  WASHIXCTOX. 

Ill  iircposing  a  (|iicstioii  in  rcgaril  to  the  '■  Alabama  claims,''  in  tlie  House  of 
'•"Ills.  May  I'J,  IrTl — (, See  Hansard's  I'arlianieutary  iJebaUs,  bird  .series,      r,,.,.,.    i  wi.ii 

..ijl  fl|l«-7(li  ) mjlnli. 

I.onl  ifedesdale  said  : 

■rill' Southern  Slates  bnil'  and  tilted  out  the  ilabnma.  They  ordered  and  jiaid  for 
'hi' ship.  Their  agents  to<dv  her  out  of  the  Mersey,  and  e<|iiip|ii'd  her  in  a  foreign  port, 
"111  tiic  injury  to  the  trade  of  the  North  was  committed  by  their  olticers  ami  the  crews 
iiiilcr  their  command."      U'- '''••'^  ) 

"ii  moving  an  a<ldress  to  Her  Majesty  in  regard  to  the  Treaty  of  Washington  on  Ihe 
i-'i'i  lit  ,)uno,  1871 .  in  the   House  of  Lords — ;See   Hansard's  i'arlianientaiy    Heb.itcs, 
iiiiil  scries,  vol.  ccvi,  pp.  lf"i:{-lUlil  )— 

Vm\  iJiissellsaid: 
Tiii'se  were  my  words,  in  December,  IHfiiJ : 

"  With  regard  to  the  claim  for  compensation  ik»w  put  forward  by  tin  I'nitcil  States 
''"viriiij|,.iit.  it  is,  I  regret  to  say,  notorious  that  the  (,Jiieen's  proelaniation,  of  Uie  i;U'i 
'I  May,  iwll,  enjoining  neutrality  in  the  unfortunate  civil  contest  in  North  ;vi.v,ruji», 
"iis  ill  several  instances  been  juai'tically  set  at  naught  by  parties  in  this  c«iu?i  ry.' 

'  fliat,  at  all  events,  was  u  fair  principle  on  wliich  to   proceed,  and  the  cause  came 


240 


ARGUMENT    OF   THE    UNITED    8TATEvS. 


to  a  point  which  may  fairly  he  cousiderod  by  the  arbiters.  Mr.  Laird  undertook  to 
Vuiihl  a  vessel  for  the  confederate  government.  Mr.  j\daniH  eomplainod  that  it  whs 
building,  and  that  it  was  intended  to  be  fitted  out  and  eciuipped  for  the  confedcnui  s. 
I  replied,  as  I  believe  any  secretary  of  state  would  have  done,  '  We  nuist  refer  tliis  u> 
the  board  of  customs  and  see  wiiether  they  can  ol)tain  evideiice  by  which  the  owners 
can  be  convicted.'  It  was  referred  to  the  legal  advisers  of  the  board,  and  on  the  1st 
of  July  I  was  able  to  inform  Mr.  Adams  that  the  Imard  held  there  was  not  sullicii'iit 
evidence  that  the  ship  was  fitted  out  with  the  view  of  making  war  upon  the  conmii'ivc 
of  a  power  on  friendly  terms  witii  Her  M/ijesty,  and  accordingly  I  deemed  myself  una- 
ble, on  that  sfatenu'iit,  to  direct  a  prosecution."    {V.  \S',M.) 

"On  the  2;Ul  of  July,  Mr.  Adams  informed  me  that  additional  evidence  had  Vkhmi 
procured  that  the  ship  was  efpiipped  so  as  to  be  fitted  for  warlike  purposes,  for  lie  hail 
obtained  the  evidence  of  a  man  named  Passmore,  who  said  it  had  been  proitosod  tu 
bim  by  the  captain  of  this  vessel,  '290,'  that  he  should  go  to  sea  with  him  and  iiiaki' 
war  on  the  commerce  of  the  United  States.  That  evidence  was  at  once  submitted  td 
the  law-ofticers  of  the  Crowu,  who,  on  the  '29th,  informed  nio  that  there  was  a  cnse  tor 
detaining  the  vessel  and  iiistituting  a  prosecution.  On  that  very  morning,  however, 
she  escaped,  and  it  remains  a  (|uestion  which  may  fairly  be  .submitted  to  any  arliitra- 
tors,  whether  I  Avas  justiri<dor  not,  on  the  ii4th  or  '2.')th,  seizing  the  ship,  afterward 
well  known  as  the  Alabama.  Mr.  Adams  stated  in  om-  of  his  letters  that  sutlicit'iit 
promptitude  had  not  been  used;  but  Sir  Eouudell  Palmer,  speaking  ou  the  liTth  uf 
March,  IHti:?,  said  : 

'• '  The  United  States  Government  have  no  right  to  comi)lain  if  the  act  in  question 
{t'..i)  foreign-enlistment  act)  is  enforced  in  the  way  in  which  English  laws  are  usuallv 
enforced  against  English  subjects — on  evidence  and  not  on  suspicion ;  on  facts  anil 
not  on  presumpii;)!!  i  on  satisfactory  testimony  and  not  on  the  mere  accusations  of  a 
foreign  minister  or  his  agents.'  [:?  Hansard,  clxx,  47.]  That  remark,  moreover,  hml 
been  quoted  by  a  noble  and  learned  lord  tqtposite  (Lord  Cairns)  when  the  Alexandra 
case  was  argued,  and  Sir  Koundell  Palmer  at  once  adopted  it,  and  said  he  still  held 
the  same  o|)inion.  It  is,  therefore,  a  very  fair  question  for  the  arbitrators,  whether 
thos<i  five  days  between  the  '24th  and  '29th  were  lost  by  want  of  due  diligence,  whetiiei 
the  law-otlieers  were  entitled  to  take  the  time  for  considering  the  matter  ;  and  whether 
an  order  to  detain  the  vessel  should  have  been  at  once  sent  down."    (P.  IHIU.) 

During  th<'  same  debate.  Earl  Granville  said  : 

"  We  were  in  this  position — that  we  were  b(mnd  by  the  act ;  luit  the  American  Gov- 
ernment were  not  bound  in  the  least  in  regard  to  the  future,  and  I  defy  any  one  to  say 
there  is  iin.v  c<)nntry  which  has  a  greater  interest  than  we  have  in  escaping  siuli 
•lepredations  as  were  committed  by  the  Alabama.  We  have  agreed  to  jjriiiciples 
■which  we  think  are  just  and  riglit ;  we  have  agreed  to  arbitration  to  settle  details  In 
arbitration,  and  we  have  agreed  that  our  subsequent  legislation  shall  be  judged  In 
tlK'ui.  According  to  the  treaty,  we  are  to  be  liable  to  the  consefiuences  of  not  usinj; 
'  due  (liligcnce.'  The  obligation  to  use  *  due  diligence'  implies  tliat  the  government 
will  do  all  in  its  i)ower  to  prev'  at  certain  things,  r.nd  to  detain  vessels  wliieh  it  ha- 
reasomible  ground  lor  believing  are  designed  for  warlike  jnirposes."    (P.  1"^.')(). ) 

"  There  is  one  proposal  which  was  made  by  my  noble  friend  (Earl  Kussell)  so  late  as 
last  year.  After  quoting  the  opinion  of  an  individual  who  took  a  very  strong  jiarti'i 
the  controversy,  he  said  : 

"  'It  ajtpears  to  me  that  if  the  ofHicers  of  the  customs  were  misled,  or  blinded  !>>  thi- 
general  i»artiality  to  the  cause  of  the  South,  known  to  ])revail  at  Liverpool,  and  that  a 
prima-facie  case  of  iiegligen(;e  could  be  made  out ' — [not  an  ascertained  case  alter  ilih' 
iutpiiry  and  iTivestigation]— '  (ireat  Britain  might  fairly  grant  a  sum  equivalent  ii 
the  lunount  of  losses  sustained  by  the  ca])tures  of  the  Alaltauia.' 

"That  passage  occurreil  in  the  introduction  of  the  noble  earl. to  his  publislnl 
speeches."     (P.  lA'iO.) 

During  the  same  debate,  the  Kail  of  Derby  said  : 

"  The  matter  is  one  on  which  I  hardly  like'  to  trust  to  the  recollection  of  theuioment. 
but  I  ilo  not  think  that  any  one  who  has  been  concerned  in  these  negotiations,  iinwiMr 
much  he  may  have  justified  tiie  conduct  of  the  government  of  tiieday,  denied  that  tli' 
eseape  of  the  Alabama  was  a  regretable  proceeding," 

During  the  same  debate  Lord  Uairns  said  : 

"  In  the  liixt  article  the  duty  of  the  neutral  is  (lualified  in  this  way.  The  nenttnl  i^ 
'  t(»  use  all  diligeme  to  prevent  the  fitting  out,  «fcc.,  of  any  vessel 'it  has  ri'aioiialdi 
ground  to  lielieve  is  intended  to  carry  on  war  against  a  belligerent.  I  want  to  kinnv 
why  these  words  '  which  has  reasomible  ground  to  believe'  are  not  repeated  in  the  sei 
ond  rule.  Why  is  t\w  jduaseology  so  entirely  ditferent  in  the  first  and  second  j)ari< 
of  the  clause  f  The  only  explanation  hitherto  given  us  is  that  given  by  the  presideiii 
of  the  council,  who  says  that  the  charge  against  us  is  that  we  did  not  use  tiiat  dii- 
diligence  which  was  incumbent  n|)on  us  as  Ufutrals.  Hut  tlu»  words  'diuj  dilifienei 
occur  in  the  first  part  of  the  clause  just  as  nmch  as  they  do  in  the  second  ;  and  if  du" 
ililigonce  is  euongli,  and  would  prevent  the  question  arising  as  to  whether  you  liadrea 


NOTE    H. — PARLIAMKNTAKY    DEBATES. 


241 


I'ttiok  to 

I  it  was 
(Icrntt's, 
r  tliin  to 
>  owners 

the  Isi 
mtticii'iit 
mimt'rcc 
nv\(  iiiia- 

liail  been 
)r  lit'  luiil 
iposi'il  to 
mil  luakt' 
nittt'tl  to 

II  en  tie  for 
however, 
y  iiil)itra- 
ifterwiinl 
sntVicient 

le  5i7tli  of 

11  question 
re  usiiiUly 
fiicts  ami 
itioiis  (if  a 
jover,  liml 
Alexandra 
B  still  lu'Ul 
8,  whetlii'v 
e,  wlietluM 
1(1  whetliiT 
1.) 

•rioun  Gov- 

■  one  to  say 

pini;  siuli 

principle' 

detail.-*  liy 

judjre.l  Uy 

not  usiiin 

overnnii'iit 

hieh  it  ha- 

)  so  late  a> 
n\'^  jiarti'i 

Ided  l.y  til.' 
[and  tiiat  a 
L  after  dii.- 
liiivalent  til 


publisli' 


juMnoineiit, 

<,  illlWCM'l 

led  that  tli>' 


|>  neutral  i- 

Irea-iiinabl'' 
lit  to  kii"" 
Tin  the  sn- 
jeond  part- 
lo  presiil''"^ 
%.  Ihatdii': 
dilijl"'"''' 
land  if '111' 
111  had  i«- 


»onuhle  j;r()un(l  Tor  holi<!vii)<f,  why  should  tlu-y  not  ho  sutlicieiit  in  the  lir.st  part  a8  well 
118  in  the  second  ?  Hiit  tho  (luestion  would  hcoiio  of  tho  linst  to  aiiHe  under  the  socond 
part  of  tlu!  (daiisr;.  When  yon  lUffc  tliat  you  had  no  n\'isonablo  ground  for  helioviiifj 
that  a  vessel  leaving  your  ports  was  int(!nd(!d  to  eniiso  or  carry  on  war  against  a  power 
with  which  you  were  at  peace,  it  may  he  said  that  you  ought  to  ha\o  known  it  and 
would  have  known  it  if  you  had  used  due  diligence.  Therefore,  I  think  it  most  iin- 
])ortaiit  that,  through  wliat  I  may  call  an  oversight  on  the  part  of  those  who  con- 
stracted  this  clause,  those  (|uniifyiiig  words  which  were  onr  only  protection  were  omit- 
ted from  tho  second  part."     (!'.  If^HT.) 

He  said  further: 

"Any  one  of  your  lordshijis  w^io  ciuisiders  tlll^  sentence  will  see  tliat  the  point  turns 
upon  tli(^  voids  'due  diligence;'  a  neutral  is  hound  to  use  '  due  diligence.'  Now,  the 
moment  you  introduce  those  words,  you  give  rise  to  another  ipiestion,  Ibr  which 
i  do  not  find  any  solution  in  this  rule.  Wh.it  is  tht;  standard  liy  which  you 
lan  measure  due  dilig(,'ncc  ?  ]>iie  diligeii'^'.  hy  itstdt'  means  nothing.  What  is 
line  diligence  with  one  man,  with  one  power,  is  not  dm^  dilig(iice  with  another 
iiiai),  with  a  greater  jiower.  Now  this  liccoiiies  much  mori'  important  when 
\oii  introduc(^  in  connectinn  another  consideiation.  TIk^  rule  I  liav<^  read  is  to 
ii.'  a  rule  of  international  law.  and  if  there  is  one  thing  more  cieai'  than  another 
ill  international  laws,  it  is  this,  that  as  lietween  two  eountries,  it  is  no  excuse  where 
,111  iiiternationa!  oliligatioii  has  lieeii  Itroken  for  one  eomitry  to  say  to  another  that  its 
iiiiniieil>al  law  did  not  confer  upon  its  Exi-eutive  siittieieiit  powei  to  enable  it  to  fullill 
;;s  iiiferiiational  duty."     (P.  1""-:*^. ) 

Itiiring  th(^  same  debale.  the  Lord  Cbancelhir.  Lord  llatherley,  said  : 

"111  the  lirst  i)lace,  it  was  well  said  tliut  thcic  is  no  correlative  co!iiiecti(Ui  between 
iiitoriiational  and  municipal  law  in  the  abstract  ;  that  a  fonugn  nation  has  nothing  to 
do  with  the  municipal  law  of  another  n.ttioii,  but  has  a  right  to  mei^t  a  statement  tliat 
in  any  country  with  which  it  has  dealings  thru)  exists  no  such  law  as  W(ml(l  prevent 
the  aits  com|ilain(^d  of,  with  the  reply  that  it  ought  to  have  such  a  law,  and  that  in- 
ifrnationiil  law  alone  must  settle  the  i|uestioii  between  them — this  being  the  line  taken 
iiythe  riiited  .States  in  reference  to  the  Alubama."     ^^.  l^'JU.) 

The  Mari|uis  of  Salisliiiry  s;iid  : 

•'We  have  not  been  t(dd  what  is  to  be  the  standard  of  '  due  diligence'  for  us.  A 
iiiiitral  will  now  Ik;  bound  to  adopt  a  svstein  of  espionage  in  order  to  ascertain  whether 
;iiiy  vessel  is  intended  for  a  hostile  cruise.  It  will  b(<  bound  to  increase  its  police,  that 
It  may  have  full  information  of  all  sui'li  undertakings.  It  w  ill  be  bound  to  interfere 
with  its  subjects,  to  make  minute  inquisitions,  to  take  an  enormous  number  ol'  costly 
,111(1  lahinious  precautions  which  before  this  treaty  it  was  not  bound  to  take.'' 

<hi  the  rilUh  of  , (line,  1H71,  in  the  Hous(!  of  Lords,  in  refeieiic(!  to  a  motion  for  an 
AildrcHs  to  Her  Majesty  it  regard  to  the  Treaty  of  Washington,  (see  Hansard's  I'ailia- 
lueiHaiy  Debates,  third  series,  vol,  cevii,  jip.  7"2*J-74L)  I'^u'l  (iranvilh^  said: 

"(hi  the  one  hand,  nothing  is  so  easy  as  to  prevent  a  vessel  of  the  Alabama  cla.ss 
I'seajiing  from  our  shores;  and  the  only  loss  to  the  country  which  would  rc'sult  from 
Mich  a  prevention  would  he  the  small  amount  of  protit  w  hich  the  individual  constrnct- 
iii]j;  and  eqnip|)ing  the  vesstd  might  derive  from  the  tiansaction.  w  hich  in  ahnusi)  every 
lase  is  contrary  to  the  preclauiation  of  the  (.^lueii."     {W  741,} 

10  c  * 


"Til 


NOTE   G.-.MIvM()RAM)rM   OF 
MENTS  IlKLATIVE  TO   THK 


CORR1':SPONI)ENCE   AND    |)()(T- 
AMENDMENT  OF   THE  ENGLISH 


FOHEIGN-EMJSTMENT  A<T  Isci'-:!. 


f>ii  the  Ttli  of  ScimiihImt.  I-iU.  ?>ir.  ^l•\\;u<i.  writii)^-  tn  .N!r.  Ailii 


ills. 


.aid  : 


"  I  do  lull  I liiiik  it  c'lii  Ix'  i'(']!;'ari It'll  a.-  ili>rt'.'>)M'('triil  it  \ du  siioiiltl  riMiiiiul  Loi'd  i,' 
that  wiu'ii.  ill  l--!',  a  (■i\  il  waf  lnokc  out   in  Canada,  ;i  i>ai't  ot"  the  Itiiti.'sli  doni 


lUllJll-. 

jidjacciit  to  the  I'liiti'd  States,  the  (;oii;ri,..ss  of  tlic  riiitt.-d  States  jtaMScd,  and  tlic  I'lcsi 
dent  fxcciitt'd.  a  law  \vliirli  etViH-tiially  jireveiited  any  intervention  against  the  (niv 
<'iiiinent  of  (ireat  riiitaii.  in  those  internal  ditlereiiees  Iiy  Aineiieiiii  eiti/.eiis,  MJiatevi-i 
iiiijilit  be  their  motives,  real  or  pretended,  whether  of  interest  or  syiniuithy.  I  send  yoi; 
il  copy  of  that  in.'ietinent.  The  Jiiiti^h  (ioveinnient  will  .jiidiC'-  tor  itself  whether  it  i- 
8ii;;j{esti\e  ot' any  uieasuics  on  the  ]),'ii't  of  (ireat  Itritain  that  niij^lit  tend  to  ])ri:s('r\,> 
the  peae(>  of  the  two  eouiitries,  and,  throii^^l.'.  that  way.  the  peaee  of  all  luitioiKs."  (Am 
A]vp.,  vol.  i,  ]).  lO'J.  iKiO.) 

On  the 'J.^'th  of  November.  l-t!l.  ar.d,  as  it  ajipears,  before  Mr.  Adams  had  taken  tln' 
dir<'et  aetioii  indieated  in  the  dispateh  ot  Mr.  .Seward  aitovc  quoted,  l-ord  liiissiii 
Avrote  to  him  as  follows: 

'•  llavinji;  thus  .inswered  Mr.  Adams  upon  the  two  jKiint.s  to  which  hin  attention  ywa- 
call(>d,  the  undersijiued  has  only  further  to  say  that  if,  in  oriler  to  iiiaintuin  invioliiic 
tho  neutral  character  which  Her  M.ijesty  lia.s  a.ssumed,  Her  Majewty's  Gov 'rminiit 
shotild  find  it  neces.sary  to  adopt  further  measures,  within  the  limitH  of  pul  In  law 
Her  Majesty  will  be  advis«'d  to  adopt  such  nie.isures."    (Am.  A)>p.,  vol.  i,  ji.  titil.) 

On  the  'iTth  of  March,  ["(i'i.  Lord  Kussell  wrote  to  Mr.  Adams  in  part  a.s  follows: 

"  I  afirt'o  with  you  in  till' statement  that  the  duty  of  nations  in  amity  with  cai  ii 
tither  is  not  to  sntfer  their  ;;ood  faith  to  be  violated  by  evil-disposed  persons  w  itjni' 
their  borders  merely  from  the  inetlicacv  of  their  prohibitory  policy."  l^Ain.  Api'. 
vol.  ii,  p.  (102.) 

On  the  yOth  of  N(>\ ember,  l^t)"2.  Mr.  Adams,  in  accordance  with  explicit  iustriictinih 
from  Mr.  Keward,  wrote  to  Lord  Kussell,  subndttin^  to  his  consideration  a  larj;e  iiiiiii- 
ber  of  papers,  estaldishiuj;  the  tact  tliat  tins  Alabama  had  destroyed  a  nuinlicr  i>! 
United  States  vessels,  and  so  was  actually  earryin;;  out  the  intention  which  Mr 
Adams  allejicd  tliat  she  had  juior  to  her  departure  iVoiu  the  ports  of  (ireat  Britain, 
and  in  the  conclusion  of  the  letter  Mr.  Adanis  said  : 

"Armed  by  the  authority  of  such  a  preicdcnt,  havinjj  done  all  in  my  power  to  ap 
pris«'  Her  Majesty's  (ioveriiment  of  tlie  ille;;al  enteri)rise  in  ample  season  for  etVectiiiu 
its  i)roveiition,  and  bein^j;  now  enabled  to  show  the  injurious  conse(|iien<'es  to  iniiorcnt 
]»arties,  ndyint;  upon  the  security  of  their  conimerct-  from  any  dan;i;(.'r  throu<^h  nriti>li 
sources  ensniui;  troiii  the  omission  of  Her  Majesty's  (jlovernment,  howt^xcr  little  lii- 
si;;'ned,  to  apply  the  pi(>|»er  )Mevention  in  due  season,  I  have  the  honor  to  inform  ymu 
lord.shipof  the  directions  which  I  have  received  fr»un  my  (iov(!rumcnt  to  soli<'it  leclii^- 
I'm-  the  national  ami  piiv.ate  injuries  already  thus  sustained,  as  well  as  a  nune  ei'lntivi' 
prevention  ol'  any  repetition  of  such  lawless  and  injurious  )iroi'eedin;j;s  in  Her  .Nlajr- 
tv'8  ports  hereatter."  (Am.  App.,  vol.  iii.  p.  7"2  ;  vcd.  i,  i>.  (idti.  Hrit.  App..  vol.  iv,  p 
1;-,.) 

On  the  liUh  of  December,  \^^V2,  I..ord  Kussell  in  part  replied  to  Mr.  Adams  as  tm 
lows : 

Ah  regards  youi  demand  for  a  more  eiVectixe  prevention  tor  the  future  of  the  tit- 
tin^  out  of  sueh  vessels  in  ibitish  ports,  I  ha\('  tlie  honor  to  inform  you  that  Her  ihi|- 
esty's  (ioveinment.  after  consult.tt  ion  with  tiie  Law-Olticcrs  id'  the  Crown,  arc  of  o|iiii 
ion  that  certain  amendments  might  be  introduced  into  the  I'oreigu-Hulistmiiil  A'l. 
which,  if  sanctioned  l>y  i'arliament,  would  h.ive  tin-  otVect  of  giving  greater  powei  t' 
the  Kxecutive  to  prevent  tlie  construction  in  liritish  pints  of  ships  destined  t'oi  llic  n- 
of  belligerents.  Ibit  Her  Majesty's  (iovernnieni  consider  that,  before  submittnu;  .m^ 
jtroposals  of  tliat  sort  to  I'arliament,  it  would  be  desirable  that  they  should  picvi'iiis.) 
cominunicate  wilii  the  (bivcinment  ot  the  I'liited  .States,  and  ascertain  whctlici  ili:i' 
(tovernment  is  willii.g  to  in.ike  similar  alterations  in  its  own  ForiMgn-Kulistnunt  .\i ' 
and  that  tlie  amendments,  like  the  original  statute,  should,  as  it  were,  proceed  y"" 
pansii  in  Itoth  countries. 

"I  shall  accordingly  be  ready  at  any  time  to  confer  with  you,  and  to  listen  tdini* 
suggest iouH  which  you  may  have  to  make  by  which  the  British  Foreign -Kn I istiiiciit  Ail 
and  tile  eorrespondiug  statute  of  the  riiited  States,  may  lie  made  mote  cllicieiit  lo' 
their  imriiose."     (Atii.  Apj».,  vol.  i.  p.tltiT;  vol.  iii,  p.  r-"-  ;  IJiit.  App  ,  vid,  iv,  p, '.J'.) 


NOTE    C. REGARDING    AMENDING    F,    E.    ACT. 


243 


DOIT- 
JGLISH 


I'd  li'iissi'i: 

loiniiiiiin'' 
till'  I'rcsi 
[  the  (iov 
wliatcvi-i 
[  si'ImI  yiii; 
letlu'V  it  I- 

(>  ]M'l.'Sfl\. 

i.s."     I  Ami 

takfii  til'' 
vd  Ruswl! 

I'litioit  wa- 
1  invioliitf 
i)V  'Viiinciii 
[lul  In  law 

(iC.l.) 
follows: 

witli  caili 

sons  Witllil! 

^Am.  App.. 

nstnu'tiiiii' 
larue  iiiuii- 
nninl)er  '<'■ 
wliifli  Ml 
It  HritiiHi, 

lOr  to  ail- 

ir  elVec'tins 

iimort'iit 

ill  Kritbli 

"  lit t If  ill- 

it'onii  yiHii 

■it  n'lin'"- 

.>ri(TtiVf 

llfi-  Maji" 

\o!.  iv,  1' 

aiii>  as  fdi- 

r  the  ti!- 
t  lleiMai- 
it'ot'o|iin 
iiiiiit  All. 

(lOWI'l'    fi' 

lortlif  I'v 
ittiuu'  aii\ 
jiivvi'iusiy 
filler  tliii' 
iiiciil  All 
rori;eil  i"" 

StlMl  tOiUl*' 

tinciit  All 
lli.iciit  111' 


On  tlif  -'Hi  of  l)o(M>ml»or.  H(>"2,  tliis  rc'ply  of  Lord  Russell  was  forwardcti  l»y  Mr. 
Aiiaiii.s  to  Mr.  Seward,  (Am.  App.,  vol.  iii,  ]>.  rt7,)  and  on  the  IKtli  of  .Janiia  y,  HliiJ,  Mf. 
Si'waid  widte  to  Mr.  Adaiii>,  re|ilyiii;;  to  tin;  .snf;-^e.stion.s  of  Lord  UiisHoll,  in  part  as 
follows: 

"It  is  not  iierceived  tliat  our  anti-<!nlistnient  act  is  defei-tive,  en'  fliat  Great  Itritaiii 
liiis  .ground  to  roinitlain  that  it  lias  not  lieiMi  clfeetiially  executed.  Neveitlieless,  tlio 
iiiDiiiisition  of  Her  MaJestyV  Government  that  tin;  two  (•'ivenunents  shall  eonfer  to- 
mtln'i'  upon  anieiidments  to  the  eorreNpondin;;'  acts  in  the  two  eonntries  evinces  a.  con- 
i-iliiitoiy.  a  li))eral,  anil  Just  sjiirit,  if  not  a  desire  to  ine\  i-nt  future  causes  of  complaint. 
Ydii  are,  therefore,  anthori/.ed  to  confei  with  Karl  h'nssell,  ;ind  to  nansniil  for  the  con- 
sideration of  the  President  Mii'h  aniendmeiits  as  Ivirl  I'u^sell  may  in  siu  h  .a  conference 
,-,ii>ui'st,  .and  you  nniy  think  proper  to  he  approved. 

"  Voii  will  receive  herewith  a  copy  of  some  ti'easonalile  ci>i  respondeiice  of  the  insnr- 
ifoiits  at  l^ichmoinl  with  their  aicents  .ahroad,  which  throws  a  llood  of  iijrht  up(m  the 
iuival  prei>arations  they  tire  niaKiii''  in  Great  JJritain.  Von  will  use  the,.>,e  jtajiers  in 
siirli  a  manner  as  shall  he  best  calculated  to  inducts  th(>  British  Government  to  eiiforc.*! 
its  existing  laws,  and,  if  possilile,  to  amend  them  so  as  to  itievent  the  execution  of  tlio 
uiiliiwfiil  (h'siijns  which  will  thus  he  hrou^iht  to  their  notice,  in  a  manner  which  will 
admit  of  ni>  <inestion  in  regard  to  the  snfliciency  ol'  cvidiMice."  (Am.  App.,  vid.  iii,  ]). 
IKi;  vol.  i,  pp.  .'S'Hi,  tif.T.) 

On  the '.Mil  of  Fehruary.  1  "*•»■.!,  Mr.  Adams  wrote  to  Lord  h'nssell,  transmitting;  tlio 
•irea.sonalde  correspondeiice  of  the  insnifienls  at  K'ichmoiid  with  their  ai;(!iiis  ahroad," 
and  said  in  j)art  as  follow^;: 

"These  papers  jjo  to  show  a  dclilieratt>  fitt(>nii»t  to  ostahli.sh  within  the  limits  of  tliis 
kiiit;dom  a  system  of  action  in  direct  hostility  to  the  (Jovernment  of  the  Lnited 
States.  This  j)lan  embraces  not  only  the  hiiildin^  and  tiftinfj  out  of  several  ships  of 
war  under  tluj  direction  ofajieiitN  esjiecially  commissiontMl  for  the  purposes,  hut  the 
preparation  of  a  series  of  measures  under  the  same  auspices  for  the  ohtaininir  from  Htsr 
Miijostj's  subjects  the  pecuniary  meaus  essential  to  the  execution  of  those  hostile  pro- 
ject.s,"    (Am.  App.,  v(d.  i,  p.  .")t)',i.) 

On  tlie  i:$th  of  February,  l."<t);{,  Mr.  Adams  liaviii<4  had  a  i)erson,'il  interview  with 
Karl  Hussell,  wrote  to  Mr.  Seward  as  follows: 

"In  obedience  to  your  instructions  contained  in  dis]iatch  No.  4')4,  I  called  the  atten- 
tion of  Lord  linssell,  in  my  conference?  of  Saturday,  to  the  rejdy  made  by  him  to  my 
note  of  the  yOth  of  Novemluir  last,  claiminj^  re|)aralion  for  the  damajfedone  by  No.  21X), 
and  security  a<;ainst  any  repetition  of  the  same  in  future.  I  observed  that  my  Govern- 
iiifiit  had  not  yet  authorized  me  to  say  anythinfj;  in  rei>ard  to  the  answer  on  the  lirst 
jioiiit ;  but  with  respect  to  tlie  second,  his  lordship's  sunf^eslion  of  possible  amendments 
Id  the  enlistment  laws  in  order  to  make  them  more  effective  had  betm  received.  Al- 
though the  law  of  the  I'uited  States  was  considcrc^d  asof  very  suilicient  vij^or,  thotiov- 
(Mnnieiit  were  not  unwillin;j;  to  consider  i»ro)>osilions  to  improve  upon  it. 

"  I'o  that  end  I  had  been  directed  to  ask  whether  any  sncli  hail  yet  been  matured  by 
Her  ihijesty's  Ministers;  if  so,  1  should  be  ha)  py  to  receive  and  to  transmit  them  to 
Wasliinjrton.  His  lordship,  rei)eatinf;  my  renuirk  that  my  (Jovennnent  considered  its 
jMcsent  enlistment  law  as  etliciently  lititectivc,  then  added  that  since  his  note?  was  writ- 
ten the  subject  had  been  considered  in  the  cabinet,  and  the  Lord  (Miancellor  had  i^x- 
jiK'ssed  the  same  opinion  of  the  liritish  law.  I'ndcr  these  circumstanccN  he  did  not  see 
tliat  lie  could  have  iiny  chani;e  to  propose. 

"1  replied  that  I  siiould  rei)ort  this  answer  to  my  (iox  eriimeiit.  What  exjdanation 
the  (Jiiver-nment  was  rciiilv  to  <'i\e  for  its  utter  failure  to  execute  a  law  confessed  to  be 


etli't'tive  did  not  then  .appear. 


(Am.  Apji.,  vol.  i,  )»,  ()(!-'.) 


On  the  11th  of  I'ebruary.  li^fi:!,  Lord  ln'iisscll  repoilcd  this  same  interview,  as  follows, 
Hiadis](atch  to  Lord  Lyons: 

"Iliad  a  con\ersation  a  few  days  a;;(>  with  Mr.  Adams  on  the  subject  of  the  Ala- 
liaiiia. 

"It  did  not  appear  that  this  (Government  desired  tn  carry  on  the  controversy  on  this 
^iilijeet  troni  Washiiiyton  :  they  rather  left  the  conduit  of  the  armimeiit  loMr.  Adam.s. 

"On  a  .second  point,  however,  namely,  whether  the  law  with  rcs|>ecl  to  ei|uipment 
ol  Vessels  for  hostile  ]ur,  |Hises  nii<flit  be  improved.  Mr.  Adams  said  that  his  (io\  ernmitnt 
\viN  ready  to  listen  to  ,iny  ))ro])ositiiins  llei'  Majesty's  (iovernment  had  to  make,  but 
tiiey  iliil  not  see  how  their  (»w  ii  law  on  this  subjei  t  coiild  be  iniprovrd. 

"  I  said  that  the  cabinet  had  come  to  a  similar  conclusion;  so  ihi.l  no  further  pro- 
|''eilini;s  need  be  taken  ;it  present  on  tliis  subject."  (Am.  Ajip.,  vol.  i,  p.  (iCri.  IJrit 
■M'i'.,  vol.  i.  ])t.  i,  p.  4.".  1 

Oil  till  '>d  of  March,  IhC,:;,  on  receipt  of  Mr.  Adams's  dispatch  of  tiie  V.Uh  of  Febru- 
aiy,  M;.  Sew  ml  wrote  to  Mi.  Adams  in  jiart  as  follows 


remains  i",M-  this  (iovernment,  tiierefore,  only  to  say  that  it  will  be  vmir  duty  to 


inyeupoii  Her  Majesty's  (iovernment  the  desire  and  expectation  of  the  I'rcsiih-nt  tiiut 
1  ie  iieforw.ird  Her  Majesty's  (Jovernment  will  lake  the  necessary  measures  to  e.nforo«i 
'I .'  f'xpciition  of  the  h. w  as  faithfully  as  this  (iovernment  has  executed  the  corre.Hpond- 
1  'A  statutes  of  the  Ini.ed  .St-'.ics.''  '  (Am.  A]))).,  vol.  i,  j),  ()(>!».} 


I 


244 


ARGUMENT    OF   THE    UNITED    STATES. 


On  tilt)  arth  of  March,  IHOU,  Lord  Russell,  reporting  to  Lord  Lyons  a  couverKatioii 
whicli  Mr.  Adams  had  had  with  him  tho  day  bttore,  ami  after  the  receipt  of  the  dispatch 
hittt  quoted,  wrote  in  ])art  as  follows  : 

"Mr.  Adams  said  there  was  one  tliinjj  which  mi;^lit  he  easily  done.  It  was  snpiKmfid 
tho  British  Government  were  indifferent  to  these  notorions  violations  of  their  own 
laws.     I^et  them  declare  their  condemnation  of  all  such  infractions  of  law. 

"With  respect  to  the  [enlistment]  law  itself,  Mr.  Adams  said  either  it  was  snflicitiiit 
for  the  purposes  of  neutrality,  and  then  let  the  Hritish  (Jovernment  enforce  it ;  or  it  was 
insnrticient,  and  then  let  the  liritish  (Government  apply  to  Parliami;nt  to  amend  it. 

"1  said  tliat  the  cabinet  were  of  opinion  that  the  law  was  sullicient,  hut  that  Ic^ul 
evidence  could  not  always  he  procured  ;  that  the  British  (Jovernment  liad  done  evcrv- 
thinji  in  its  power  to  execute  the  law  ;  hut  I  admitted  that  the  cases  of  the  Alaliiiiiia 
aiul  Oreto  were  a  scandal,  and.  in  some  dej;ree,  a  reproach  to  our  laws."  (Ain.  .\pp., 
vol.  i,  p.  ti70;  vol.  iii,  p.  Vi'2.     Hrit.  App.,  vol.  iv,  pt.  ii,  p.  2.) 

On  the  27th  of  March,  IH(W,  tho  neutrality  laws  of  (ireat  Britain  liein;^  under  ron- 
sideration,  in  connection  with  the  escape  of  the  Alaljama,  tiic  Solicitoi-(Jt!neral,  Sir 
KoundcH  Palmer,  said  : 

"TheUnitt!d  States  Government  apjicar  to  have  a  more  convenient  nuithod  tliiui 
ours.  Their  cnstinus  authorities  have  a  court  always  sittinj;,  ready  tt>  th^al  with  such 
nuitters;  hut  in  this  connlry  the  customs  autlnuities  would  iiave  had  toseizt!  the  ship. 
without  any  order  of  the  court,  on  the  itspousihiiity  of  the  GovernuuMit ;  and  il  would 
1(0  a  direct  vio'ation  of  the  law  to  do  that,  unless  tlieie  was  a  justifyinjj  causf  tor 
doinf;'  so."    (Am.  A|>p.,  vol.  iv,  p.  .'>22.) 

In  the  Siitne  debate,  he  said  further  : 

"And  if  our  law  is  defective,  it  is  for  this  House  to  <'ousi(h^r  whtaher  it  ou<ilit  to  hf 
amended.  If  Her  ^laJesty'sGovernment  thouj-ht  it  was  so,  tln^y  would  be  willinff,  iu 
concert  with  the  American  (iloverument,  to  ccmsider  how  it  niiyht  be  amended,  lint 
they  could  not  think  it  wonlil  be  aetinjj  luudently  or  safely  to  come  down  to  raiiia- 
uient  and  propose  an  alttsration  in  our  law.  unless  they  hail  reason  to  believe  that  ihi 
Anu'rican  Government  were  prejiared  to  take  sonit;  steps  to  place  their  law  also  mi  the 
same  basis."    (Am.  App.,  vol.  iv,  p.  .Vi:?.) 

In  the  same  debate.  Lord  I'alnunston  said: 

"  IJut  if  this  cry  is  raistid  for  the  |)urpose  of  driving  Her  Majesty's  GoveriuiU'iit  todo 
something;  which  may  be  contrary  to  the  laws  of  the  country,  or  which  may  be  derojiu- 
tory  to  the  dijjnity  of  the  country,  in  the  way  of  altcriufj  tiur  laws  for  the  purpose  ot 
pleasiuff  anotluT  (Jovernment,  then  all  I  can  say  is,  that  such  a  course  is  not  likely  to 
accomplish  its  purpo.sc. 

»  <•  #  »  *  *  * 

"  I  think  that  the  House  at  least  will  see  that  the  statement  of  my  honorable  and 
learned  friend  proves  that  we  have,  in  rej'ard  to  enforcinj;  the  Foreij^n-F.nlisiment  Att, 
done  all  that  the  law  enabhd  or  permitted  us  to  do. 

»  #  *  *  t  *  * 

"The  law  is  in  this  case  of  very  diHicult  execution.  This  is  not  the  first  time  whon 
that  has  lieen  discovered.  When  the  contest  was  raj4;in;>-  in  Spain  betw(!en  Don  Carliw 
an<l  Qnecii  Isabt  lla,it  was  m\  duty,  the  Hritish  (Jovernment  haviuj^  taken  part  with  tlif 
Queen,  to  prevent  supplies  from  beinjjtsent  to  Don  Carlos  from  this  country.  There  wtirt' 
seveial  cases  of  ships  fitted  out  in  the  Thames;  but,  thonjih  I  knew  they  were  inlitidid 
to  t;o  in  aid  of  Don  Carlos,  it  was  imjiossilde  to  obtain  that  information  which  would 
have  enabled  the  (Jovernment  to  interfere  with  success. 


"I  do  hope  ami  trust  that  the  jieople  and  (Jovernment  of  the  United  Slates  will 
believe  that  we  are  doinf"  our  best  iu  every  case  to  execute  the  law;  but  they  niiinl 
not  inninine  that  any  cry  which  may  be  raised  will  induce  us  to  come  tlown  tit  tlii" 
House  with  a  proposal  to  alter  the  law.  We  have  had — I  have  had — some  expcrifiirc 
of  what  any  attempt  of  that  sort  may  be  expected  to  lead  to  ;  and  I  think  there  an 
several  {f^'ntlemen  sittinjj  on  this  bemdi  who  would  not  be  disposed,  if  I  were  so  in- 
cline«l  my.'^elf,  to  concur  in  any  such  proposition."    (.Vin.  Api».,  vol.  v,  pp.  .'">:(( I, .'tit I.) 

On  the '.Mil  of  .Inne,  iHl'.?,  certain  nnrehants  of  Liverpool  addressed  a  memorial  In 
L»>rd  Russell,  in  part  as  follows: 

"Your  memorialists,  who  arc  de«'ply  interested  in  hritish  shipping;,  view  with  din 
nniy  the  probable  future  conseiinences  of  a  state  of  alVilirs  which  jiermits  a  t'iinit;ii 
beiliKerent  to  construct  iu,  and  semi  to  .sea  from,  British  [torts  vessels  «»f  war  in  t""- 
travention  of  the  provisions  of  the  existing  law. 

"That  the  immediato  effect  of  placing  at  the  disposal  of  that  foreign  belligerent  a 
very  small  luimber  of  steam  cruisers  has  lu'cn  to  paralyze  tlui  merchant  marine  ol  ii 
powerful  maritinu)  and  naval  nation,  inflicting  within  a  few  months  losses,  direct  anil 
indirect,  on  its  ship-owning  and  mercantile  interests  which  years  of  peace  may  prove 
inadequate  to  retrieve. 


■w 


NOTE   C. RKGARDING    AMENDING    F.    E.    ACT. 


245 


"Your  memorialists  woiild  accordiiijjly  rosppotfiilly  iirjjo  upon  your  lordship  tlio 
expediency  of  proposing  to  Parliament  to  sanction  the  introduction  of  such  amo.nd- 
ineiits  into  the  Foreign-Enlistment  Act  as  may  have  the  effect  of  giving  greater  power 
to  the  Executive  to  prevent  the  construction  i?i  Uritish  ports  of  ships  destined  for  use 
of  belligerents."    (Am.  App.,  vol.  i,  )>.  OT'J.) 

On  the  24th  of  June,  If^iVA,  the  Lord  Chief  Baron,  in  charging  the  jury  in  the  Alex- 
iHidra  case,  said  : 

"(Jentlemen,  I  must  siiy,  it  seems  to  me  that  the  Alahama  sailed  away  from  Liver- 
pool without  any  arms  at  all,  nu'rely  a  ship  in  ballast,  unfurnisht'd.  nue(|uipped,  un- 
|irepared,and  her  arms  were  put  in  at  Terceira,  not  a  port  in  Her  Majesty's  dominicuia. 
The  Foreign-Enlistment  Art  is  no  mcne  violated  by  that  than  by  any  other  inditteront 
mutter  that  might  happen  al)nut  a  boat  of  anv  kind   whatever."     (Am.  App.,  vol.  v, 

p.  m.) 

On  tlie  (Uh  of  .July,  IrHi:?,  Mr.  Hammond,  by  the  direction  of  Earl  Kus.sell,  replied  to 
the  inenioriiil  of  the  Liverjiool  merchants,  in  part  as  follows  : 

"In  Lord  Kussell's  ojiinion  the  F<u'eign-Kulistmeiit  Act  is  etfectual  for  all  reasonable 
luir|iosi'S,  and  to  the  full  extent  to  which  international  law  or  comity  can  rei|uire, 
[Piovidtrd  proof  ean  be  obtained  of  any  act  ilone  with  the  intent  to  violate  it, 

"Kven  if  tin-  i>roviNions  of  the  act  weii'  extended,  it  W(Uild  still  be  necessary  that 
siicli  proof  should  b(^  obtained,  because  no  law  could  oi'  should  l>e  passed  to  punish 
upon  suspicion  in>teatl  of  upon  lU'oof."     (.\m.  A|»p.,  vol.  i,  ]».  ti?;?.) 

Oil  tlie  Kith  of  .July,  l-'d;!,  Mr.  Adams,  tr.insuiittiug  to  Mr,  Seward  copies  of  the 
memorial  of  the  Liverp(K»l  miTchants,  and  of  the  I'cply  t<»  the  same,  wrote  in  part  as 
Ibilows : 

"  It  nuiy  be  inferred  from  this  that  the  (ioverninent  will  persist  in  their  etforts  to 
iMitorce  the  ])rovisions  of  the  Eulistnu'Ut  Act  through  the  Courts,  reserving  to  them- 
selves an  avenue  of  escape,  by  reason  of  any  failure  to  be  supplied  with  evidence 
(if  intent  to  vitdate  tlieui.  Whether  they  expect  the  duty  of  looking  tiiis  up  to  be 
perforined  by  us,  or  they  design  to  seek  it  also  from  other  smirees,  does  not  clearly 
apjiear."     (Am.  App.,  vol.  i,  p.  ()71.) 

On  the  l»)th  of  Septend)er,  Irilill,  Mr.  Adams,  in  a  letter  to  Earl  Hussell,  while 
liescriliiiig  the  great  «langer  threatening  the  I'nifed  Stati-s  in  the  Imilding  of  the  rams 
liy  the  Lairds  at  Liverpool,  said  in  jiart  as  follows  : 

"And  here  your  lordships  will  i)eruiit  me  to  remind  yo\i  that  Her  Majesty's  Govern- 
ment cannot  Justly  plead  the  inellieaey  of  the  i)rovisions  of  the  <'.nlistuuMit  law  to 
enforce  the  duties  of  neutiality  in  the  present  emergency  as  depriving  tluMn  «»f  tlm 
power  to  prevent  the  auti(;ipated  tlanger.  It  w  ill  doubtless  be  reinenil)ered  that  the 
proposition  made  by  you,  and  which  1  ha<l  the  hmior  of  being  the  medium  of  convey- 
ing to  my  Government,  to  agree  upon  souu-  forms  (d  amendment  id"  the  respective 
sitatiites  of  the  two  countries,  in  oi'dtir  to  make  them  more  ell'ective,  was  entertained 
by  the  latter,  not  from  any  want  of  conlidence  in  the  a\)ility  to  enforce  the  existing 
statute,  but  fr«)m  a  desire  to  co-o|)er;ite  with  what  then  appt^ared  to  be  the  wish  of  Her 
Majesty's  Ministers.  Hut,  njton  my  communicating  this  reply  to  your  lordship,  and 
inviting  the  discussion  of  propositions,  ycui  then  inf<u  ined  me  that  it  had  been  decided 
not  to  proceed  any  further  in  this  direction,  as  it  was  tlii!  opinion  of  the  Cabinet,  sus- 
tained by  the  authority  of  the  J^ord  ('hancellor,  that  the  law  was  fully  effective  in  its 
present  shajte."    (Am.  App.,  vol.  ii,  p.  :?7H ;  vol.  vi,  p.  iu'A.     Brit.  Ajtp.,  vol.  ii,  p.  :{(>4.) 

On  the  iJ.'Jth  of  ISeptend)er,  IHIilJ,  Earl  Russell  rejdied  to  Mr.  Adams  in  jiart  as  follows  : 

"There  are,  however,  passages  in  your  letter  of  the  Kith,  as  well  as  in  some  of  your 
former  ones,  which  so  plainly  and  repeatedly  imply  an  intimation  of  hostile  proceed- 
nig  toward  Great  Britain  on  the  part  of  the  Goviuinueut  of  the  United  States,  uuIohs 
step!4  are  taken  by  Her  Majesty's  (Jovernment  which  the  law  does  not  authorize,  or 
unless  the  law,  which  you  consider  as  insuthi'ient,  is  altered,  that  1  deem  it  incumbent 
npon  me,  in  behalf  of  Her  Majesty's  (loverument,  frankly  to  state  to  you  that  Her 
Maje-sty's  Government  will  not  be  induced  by  any  such  eonsideration  either  to  over- 
Ntep  the  limits  of  the  law,  or  to  proi)ose  to  I'arliaunuit  any  new  law  which  they  may 
not,  for  reasons  of  their  own,  think  proper  to  be  adopted.  They  will  not  shrink  from 
any  conse(|uences  of  such  a  decisi<m."  (Am.  Ajjp.,  vol.  i,  j).  (574;  vol.  ii,  p.  :W4.  Brit. 
App.,  vol.  ii,p.  374.) 

On  the  Kith  of  February,  I8fi4,  Earl  Russell  spoke  in  the  Hcuise  of  Lords  in  ]»art  as 

follows: 

■'Refi-rring  again  to  the  Alabama,  the  noble  earl  seems  to  be  much  shocked  because 
I  said  that  that  case  was  a  scandal,  ami  in  some  sense  a  reproach  upon  British  law.  1 
»*y  that  here,  as  I  saiil  in  that  dispatch.  I  do  consider  tliat,  having  pas.sed  a  law  to 
prevent  the  enlistment  of  Her  Majesty's  subjects  in  the  service  of  a  foreign  power,  to 
prevent  the  fitting  out  or  ecpiipping,  within  Her  Majesty's  dominions,  of  veHsela  for 
warlike  purposes  without  Her  Majesty's  sanction  ;  I  say  that,  having  passed  such  a  law 
ill  the  year  IHIJ),  it  is  a  scandal  and  a  reproach  that  one  of  the  belligerents  in  this 

American  contest  has  been  enabled,  at  the  order  of  the  confederate  government,  to  fit 

out  a  vessel  at  Liverpool  in  such  a  way  tliat  she  was  capable  of  being  made  a  vessel  of 


'*  : . 


pi 


■  -  r    "—^^^^ 


246 


ARGUMENT   OP   THE    UNITED    STATES. 


war ;  tbat,  after  going  to  another  port  in  Her  Majesty's  dominions  to  ship  a  portion  of 
her  crew,  she  procoeued  to  a  port  in  neutral  territory  and  there  completed  her  crew 
and  c«niipinont  as  a  vessel  of  war,  -so  that  she  has  since  been  able  t')  ca{)turo  and  de- 
stroy innocent  merchant  vessels  belonging  to  the  other  belligerent.  Having  been  thus 
equipped  by  an  evasion  of  the  law,  I  say  it  is  a  scandal  to  «Mir  law  that  we  should  not 
be  able  to  i)rcvent  sucli  belligerent  operations.  J  venture  to  say  so  much,  because  at 
tlio  P'oreign  Othce  I  feel  this  to  be  very  inconvenient.  If  you  choose  to  say,  as  you 
might  have  said  in  former  times,  'Let  vessels  bo  titte<l  out  and  sold;  let  a  vessel  go  to 
Charleston,  aiul  there  be  sold  to  any  agent  of  the  confederate  government,'  I  could  un- 
derstand such  a  state  of  tilings.  But  if  we  liavo  a  law  to  prevent  the  fitting  out  ot 
warlike  vessels,  without  the  license  of  Her  Miijesty,  I  do  say  this  case  of  the  Ahiliania 
is  a  scandal  au<l  a  reproach.  A  very  learned  judge  has  said  that  we  might  drive,  not 
a  coach  and  six,  but  a  wlnde  fleet  of  ships  througTi  that  act  of  I'arliauient.  If  tliat  br 
a  correct  description  of  our  law,  then  I  say  we  oiiglit  to  have  the  law  made  more  cliiu 
and  intelligiblt!.  Tliis  law  was  said  to  bo  passed  .,0  secure  tho  peace  and  welfare  ot 
this  nation,  and  I  trust  it  may  be  found  in  tho  end  sullicient  for  that  purpose.  1  say. 
however,  that  while  the  law  renuuns  iu  iis  presc^ut  state  its  i>urposo  is  obviously  dc- 
feated,  and  its  enactnieiits  made  of  no  ettect  by  Uritish  subjects  who  defy  the  Queen's 
proclamation  of  neutrality."    (.\ni.  App.,  vol.  v,  ]).  .V28.) 

OnthellOth  of  August,  IH)r),tlie  Jhitish  Foreign-Eiilistiiient  Act  remaining  unclianficd, 
and  the  rebellion  in  tho  United  States  having  been  crusrhed,  P^arl  Russell  wrote  Mr, 
Adams  in  part  as  follows  : 

"  You  say,  indeed,  that  the  Oovernmeut  of  tlio  United  States  altered  the  law  at  tlie 
urgent  re<iuest  of  the  I'ortiignese  minister.  I'.ut  you  forget  tiiat  the  law  thus  alteit'il 
was  tho  law  of  1794,  and  that  the  law  of  181H,  then  adopted,  was,  in  fact,  so  far  as  it 
was  considered  applicalile  to  the  circumstances  and  institutious  of  this  country,  tin 
model  of  our  Foreign-Enlistment  Act  of  Idi!). 

"Surely,  then,  it  is  not  enough  to  say  that  your  Government,  fit  the  request  of  Por- 
tugal, induced  Congress  to  provide  a  new  and  more  stringent  law  for  the  jiurpose  o( 
preventing  de|)redations,  if  (ireat  IJritaiu  has  already  such  a  law.  Had  the  law  of  tin 
United  States  of  1818  not  been  already,  in  its  main  provisions,  adopted  by  our  lejfisl.v 
tnro,  you  might  reasonably  have  asked  us  to  make  a  new  law;  but,  surely,  we  are  not 
bound  to  go  on  making  new  laws  ad  iiijiiiitinn  becanso  new  occasions  arise. 

"Tho  fact  is,  this  (|uestioii  of  a  new  law  was  fre<|uently  discussed;  hut  thi  eonolii- 
sion  arrived  at  was,  that  unless  the  existing  law,  after  a  sutticient  trial,  ■should  \>c 
proved  to  he  i)ractically  inade(|uate,  tho  object  in  view  would  not  he  promoted  by  anr 
attempt  at  new  legislation."    (Am.  App.,  vol.  i,  p.  ^77;  vol.  iii,  p.  r>(>'2.) 

On  the  IHtli  of  September,  18(ir),  Mr.  Adams  replied  to  Earl  Russell  in  part  as  follows: 

"The  Hritish  law  is,  as  your  lordship  states,  a  re-enactment  of  that  of  the  United 
States,  hut  it  does  not  adopt  all  of  'its  niaiu  jnovisions,'  as  you  seem  to  suppose.  Sin- 
gularly enough,  it  entirely  omits  tliose  very  same  sections  which  were  originally  en- 
jicted  in  1817,  as  a  temporary  law  on  tho  complaint  of  the  I'ortugueso  minister,  and 
were  made  permanent  in  that  of  1818.  It  is  in  these  very  sections  that  our  experienci' 
has  shown  us  to  reside  the  best  preventive  force  in  tho  whole  law.  I  do  not  doubt,  as 
I  had  the  honor  to  remark  in  my  former  note,  that  if  they  had  been  also  i  ncorpoiatf tl 
in  the  British  statute,  a  largo  portion  of  the  undertakings  of  which  my  Government  mi 
justly  complains  would  have  never  been  commenced  ;  or,  if  cominenced,  would  never 
have  been  executed.  Surely  it  was  not  from  any  fault  of  the  United  States  that  tliese 
ert'ective  provisions  of  their  own  law  failed  to  find  a  jdace  in  the  corresponding  lofjis- 
latiun  of  Great  Britain.  But  the  occasion  liaving  arisen  when  the  absence  of  some 
similar  security  was  felt  by  my  Government  to  be  productive  of  the  most  injiuiouc 
efl'ects,  I  cannot  but  think  tbat  it  was  not  so  unreasonable,  as  your  lordship  seems  to 
assume,  that  I  should  hope  to  see  a  willingness  in  that  of  Great  Britain  to  make  tlie 
reciprocal  legislation  still  more  complete.  In  that  hope  I  was  destined  to  be  uttcrh 
disappointed.  Her  Majesty's  government  decided  not  to  act.  Of  that  decision  it  is  no 
part  of  my  duty  to  complain.  The  responsibility  for  the  injuriesi  done  to  citizens  ot 
the  United  States  by  tho  subjects  of  a  friendly  nation,  by  reason  of  this  refusal  to 
respond,  surely  cannot  be  made  to  rest  with  them.  It  appears,  therefore,  necessarily 
to  attach  to  the  party  making  the  refusal."     (Am.  App.,  vol.  i,  pp.  679,  680.) 

On  the  ad  of  November,  18(55,  Earl  Russell  wrote  to  Mr.  Adams  in  part  as  follows; 

"  Yet  it  appears  to  me,  I  confess,  that  as  neither  the  law  of  tba  United  States  nor  onr 
own  Foreign-Enlistment  Act  have  proved  upon  trial  completely  etticacious,  it  is  worth 
consideration  whether  improvements  may  not  he  made  in  the  statutes  of  both  nations, 
so  that  for  the  future  each  government  may  have  in  its  own  territory  as  much  secnrity 
aa  our  free  institutions  will  permit  against  those  who  act  in  defiance  of  the  iuteutiou 
of  the  sovereign,  and  evade  the  letter  of  its  laws."    (Am.  App.,  vol.  iii,  p.  588.) 

On  the  18th  of  November,  1865,  Mr.  Adams  replied  to  the  Earl  of  Clarendon,  suc- 
cessor of  Earl  Russell,  in  part  as  follows : 

"  Yet  with  regard  to  the  proposition  immediately  before  me,  I  cannot  forbear  to  ob- 
serve tbat  it  is  predicated  upon  an  assumption  that  the  legislation  of  the  two  countries 


NOTE    C. REGARDING    AMENDING    V.    E.    ACT. 


247 


irtion  of 
er  crew 
ami  (le- 
eon  thus 
oulrt  not 
icansi!  at 
',  as  you 
sol  K"  to 
!0\il»l  iin- 
\ii  out  111 

AluliaiMi* 
rive,  not 
f  tliat  b.' 
oi'O  clriu' 
vt'Hait;  ot 
i!.  1  s;iy. 
oiisly  (If- 
i  liin'on's 

idiaup'il. 
.vi'otf  Mr. 

aw  at  tli«> 
UH  altcrt'il 
10  iav  as  il 
iiuti-y,  tilt 

!Ht  of  Por- 
^mijioso  o( 
law  of  tlif 
111-  loji'isb- 
wo  arc  nol 


is  now  t'qiially  incnicacioiis,  wliicli  I  cannot  entertain  fo"  a  moment.  On  the  eontrary, 
tlie  neccHsity  for  some  action  in  future  neoms  to  me  i:<  bo  imperative,  hceauHc  that 
lef,nslatiou,  as  it  now  stands,  is  not  co-extensive. 

"For  it  is  hardly  jiossiblo  for  rae  to  imagine  that  the  iieople  of  the  United  States, 
after  the  experience  they  have  had  of  injuries  from  the  imi»erfection  of  Hritisli  lejjis- 
liitioii,  and  u  refusal  to  anu-nd  it,  would  be  ready  cheerfully  to  respond  to  another 
appeal  like  that  made  in  I>^').">,  by  Her  ^lajesty's  reitresentative,  to  the  more  stringent 
ami  cfVoctive  protection  extended  by  their  own."     (Am.  Ajtp.,  vol.  iii,  jt.  (".•.il.) 

Ou  the  14th  of  December,  this  last  dispatch  having  been  transmitted  to  Mr.  Seward, 
be  wrote  Mr.  Adams  in  part  as  follows  : 

'•  I  am  directed  by  the  President  to  approve  of  the  views  which  you  have  expressed 
in  regard  to  a  proposition  made  by  Earl  Russell  H)r  a  concurrent  revision  by  llie  two 
tlovernments  of  their  legislatioii  upon  the  subject  of  the  neutrality  laws.  You  will, 
therefore,  inform  Lord  Clarendon  that  the  United  States  do  imt  incline  toward  an 
acceptance  of  Earl  Russell's  ])ropositiou.''     (Am.  App.,  vol.  iii,  p.  ♦W.'j.) 

On  the  30th  of  January,  IHfJ?,  a  Comnussion  was  ai»pointed  by  the  (^ueen — 

"  To  inquire  into  and  consider  the  character,  working,  and  enect  of  the  laws  of  this 
iralin,  available  for  the  enforcement  of  neutrality  during  the  existence  of  hostilities 
lictween  other  states  with  whom  we  are  at  peace;  and  to  iuciuire  and  report  whether 
any  and  what  changes  ought  to  be  made  in  such  laws  for  the  purpose  of  giving  to 
:licin  increased  eflieieiiey,  and  bringing  them  into  full  conformity  with  our  inter- 
national obligations."    (Am.  App.,  vol.  iv.  ]>.  Til.) 

During  the  y<^ar  l^-t')'^,  the  Commission  reported  that  in  their  opinion  the  Foreign-En- 
listment Act  "might  be  uuide  more  ellicietit  by  the  enactment  of  "  certain  provisions. 
See  the  rejtort.     (Am.  App.,  vol.  iv,  ]).  80.) 

The  British  Foreign-Enlistment  Act  of  August  D,  1870,  which  was  passed  just  after  the 
breaking  out  of  the  I  ranco-Prussiau  War,  essentially  embodies  all  the  recommenda- 
tions of  the  Commission.  (See  the  Act,  A>n.  App.,  vol.  vii,  pp.  l-iK  See  also  extracts 
tioui  the  debates  at  the  time  of  its  passage,  ««/<.) 


th'i  conchi- 

slioulil  lie 

ted  by  any 

[as  follow*: 
ho  Uniteil 
Ipose.    Sin- 
ginally  en- 
uister,  ami 
cxperiencf 
,t  doubt,  as 
icorjtoratoil 
enuuent  s» 
■ould  never 
that  these 
idiug  loRis- 
|eo  of  some 
t  injurious 
ip  8een\s  to 
|o  make  the 
1)0  utterly 
[ion  it  is  no 
citizens  ol 
refusal  to 
necessarily 

[follows: 
Ites  nor  our 
[it  is  worth 
J»th  nations. 
Ich  secnrity 
le  intention 
18H.) 
Vndou,  8UC- 

tbear  to  ob- 
Vo  couutriw 


^ 


P"' 


NOTE  P.-CONSIl)RRATION  OK  THK  CLAIMS  ARISING  IN  THK 
DESTRUCTION  OF  VESSELS  AND  PROPERTY  BY  THE  SEVKIUI 
CRUISERS. 


fo  ni»lM'.l  liv  III' 
rl-'itn:iliT>  to  -'i|ilKi|1 
th.r,i. 


Till'  I'nifod  Siuto8  prpsonlt'ii  to  tliis  Trilmiiiil,  on  (ln>  ir)Hi  of  IVconibcr  List,  n  ,|i>. 
tiiiliMl  |>riiittMt  stut<>in*>iit  ot'  all  tin*  cliiiniH  tor  tW  ilrstrurtion  of  vosscli 
in''t''h'rvlh'r!ii'.M     '*"•'  property  by  tlie  m'voral  cruisors  I  hut  bail,  down  to  that  «lato,  comi' 
.nniHii.    '  to  tlifir  knowbMl<:;e  iu  tinie  to  bt>  so  prfst-ntcil.     Tb«>  United  States  tlieti 

dt'rlarcd  that  this  statenitnt  showed  the  eniiHers  w  bleb  <lid  the  iniiirv 
the  vessels  ib-stroyed,  the  several  elaiiiiants  lor  the  vessel  and  for  the  ear^o,  the  aniiiiint 
insured  upon  eaeh,  and  all  the  other  facts  necessary  to  enable  this  Tribunal  to  h'.m  Ii  i 
conclusion  as  to  the  amount  of  the  injury  connniited  by  the  cruisn  ;  and  further,  tlnii 
it  showed  the  nature  and  character  of  the  proof  placed  in  the  hands  of  the  I'niifd 
States  by  the  sutlerers. 

In  accordance  with  its  ri<;ht,  the  I'nited  States  ajiain,  on  the  l.'th  day  of  A))ril  ].ix\. 
presented  to  this 'J'libunal  a  revised  slateiuent  of  ilainis  (•(nitainiiiijj  those  nientioiicil  in 
the  previous  statement,  as  well  as  others  which  bad  bet  ii  received  by  the  (iovcnuin'iii 
«>f  the  I'nited  States  subsetiuent  to  the  ]>i  intiny;  of  the  ]trevi(Mis  statement  and  luini 
to  the 'i'Jd  of  March.  l-'T'i,  at  which  time  it  was  necessaiy  to  conclude  the  ]>rintiii!,' ci 
the  revised  list  in  order  that  it  mi<;bt  reach  Cieneva  in  season  for  presentation  witlillic 
Counter  Case  of  the  l/nitcd  States.  (See  iJev  ised  List  of  Claims.  ]>.  :?:{.'>.) 
Witt.ii,oev„i,.n..'  These  claim.s  do  in)t  ai)pear  as  claims  ainlited  by  the  I'nited  Stnti'-* 
but  iu  the  form  antl  supported  l)y  the  evidence  in  which  the  i  laiiiiiuit- 
have,  presented  them  to  the  (ioM-rnmeut  of  the  I'liited  States, 
[n  his  Annual  Messaj-e  in  December.  1-70.  I'roident  (Jrant  recommended  that  (on 
gres.s  should  authorize  the  appoint  meiii  of  a  Commission  to  take  proof  of  the  ainiinnt>. 
and  the  ownership  of  these  several  claims  on  notice  to  the  representative  of  Uc. 
Miijesty  at  Washington  ;  and  aN'  that  authority  should  be  i^iven  for  the  settleiinMit 
of  those  claims  by  the  I'nited  .■-  es.  so  that  the  (ioverinuent  mi^jiht  Imve  the  nwnit 
ship  of  the  private  claims  as  well  as  the  respoiisibh!  control  of  all  demands  aj^ninM 
(}reat  Ihitain.  A  Hill  had  been  introduced  into  Conjiress  for  carryin;^  out  this  n-coin- 
mendation  of  the  {'resident,  when  the  n<>uotiation  and  ratilication  of  th^  'I^r.-^aty  umlt'i 
which  this  Tribunal  is  now  assembled.  ]>revented  the  jtroposed  le^ri-  ;;ition.  Otlior\vi'*i> 
these  claims  inifiht  now  ha\e  existed  as  so  many  millions  of  dollar's  which  the  rniti'ii 
States  had  paid  to  its  citizens  for  injuries  which  it  believed  to  have  been  inflicted  upon 
them  by  (Jreat  lUitaiu. 

Kecofjiiiziufr  the  sitniition    in  which   these  and  other  claims  of  the  T'nited  Statt>» 
oxi8te<l.  the  Treaty  provided  that  under  certain  conditions  this  Tribunal  mijjht   'itrn 
ceed  to  award  a  sum  in  j;ross  to  be  i>aid  by  (Jreat  Britain  to  the  Cnited  States  for  :»!i 
the  claims  referred  to  it  ;''  and  further,  that  in  case  the  Tribunal  "should  not  award 
a  sum  in  <;ross,"  then  that  'a  board  of  asses,sors "  .should  be  appointed  to  a.scertnin  and 
determine  what  claims  an;  valid,  and  what  amount  or  amounts  should  be  paid  bytircal 
Britain  to  the  Cnited  States  on  account  thereof,  under  the  decision  of  this  Tribunal. 
The  United  States,  however,  for  reassons  stated  in  it.s  Case.  (p.  4rtO,)  earnestly  ex 
Th.- 1  n,i..i  st:,t.-,  Pi't's^"'*'  the  hope  that  the  Tribunal  would  exerci.se  the  imwer  conferroil 
dH-ir.nni.wi.r,i  ..iH  upouit  to  awanl  a  suHi  in  (xross  to  be  paid  by  Great   Britain  to  tliP 
'"!!l..;"."rr.Z.d.'''  I'liit'^'l  States,  believing  that  it  would  l)e  unjust  to  impose  further  delay 
and  the  expense  of  presentiuK  claims  to  another  tribunal,  if  the  evideiuo 
which  the  Unite*!  States  has  the  honor  to  present  for  the  couHideration  ofthe.se  Arbitrators 
shall  prove  to  be  sutticient  to  enable  them  to  deterniine  what  sum  in  };ross  would  be  a 
just  compeu8ati«>n  to  the   United  States  for  all  the  injuries  and  Icsses  of  which  it 
coniplaiufl.     In  the  opinion  of  the  United  States,  the  evidence  presented  does  fnrnisli 
all  the  facts  necessary  to  enable  the  Tribunal  to  reach  such  a  conclusion.    The  United 
States  ha«  not,  however,  thought  it  necessary  to  print  all  the  memorials  and  document.'* 
presented  by  the  several  claimants,  and  referred  to  in  the  two  lists  of  claims  ;  nor,  in 
the  absence  of  any  expressed  desire  on  the  part  of  this  Tribunal,  has  it  produced,  ** 
it  ottered  to  do,  if  desired,  the  original  evidence. 
Her  Majesty's  Oovernment  ha«,  iu  vol.  vii  of  the  Ajtpendix.  presented   with  the 
Counter  Case  a  report  of  a  committee  of  two  persons,  Messrs.  Cohen  and 
o.°thf»"ev,,ii.m'.'.''""*  Vonng,  appointed  by  the  Board  of  Trade  to  investigate  the  claims  pre- 
sented on  behalf  of  the  United  States  (jovernment. 
Tliis  committee  felt  it  to  be  its  duty  to  sift  and  analyze  these  claims,  to  state  the 
amounts  which,  in   its  opinion,  should  be  considered  to  constitute  a  fair  and  proper 


NOTK    D. rONCERNlNG    CLAIMS    OF    INDIVIDITALS. 


249 


1  n  ^  *  !•  r    II 

<-n(ii'i^lii.i 


fompMisation   for  tlio  Iobhph  in  rcs|»oct   to  which  tlieso  chiims  are  put  forwunl,  ami  to 
0K]»lHin  tho  if'asons  upon  which  its  foncluaioiis  wtTo  toiiii<h)tl. 

ThtMi'  report  '\»  Haiti  to  cover  all  tho  claims  contained  in  the  printed  list,  oxclusivo  (tf 
(hA  cliiimH  for  interest  and  the  claims  relating  to  increased  war  preminms.  And  in  thn 
Hritish  Counter  ('ase  (p.  i:!l)  it  is  stated  that  "  a  reference  to  this  report  will  convinco 
thp  ArlMtrat(»rs  that  no  rtdiance  can  he  placed  on  the  estimates  ]»resento»l  of  uUogod 
private  losses,  and  that  were  the  Trihunai  to  hold  (ireat  liritain  liahle  in  respect  to  any 
1)110  or  more  of  the  enumerated  crnisers,  and  to  decide  on  awarding;  a  ;;ross  sum  for 
couipensatifMi,  tlieie  estimates  could  not  safely  he  a(!cepted  v.s  furnishin<;  (!Ven  a  prima 
fofif  hasis  for  tiic  coni|)ntation  of  such  a  \!,r»sA  sum." 

The  government  of  the  Cnited  States,  im  the  other  hand,  holds  that  the  statomnnt 
of  clainiH  presents  ail  the  fiicls  necessary  to  enahle  the  Trihunai  to  reach 
a  roucluflion  at*  to  the  amount  of  injury  committed  liy  each  cruiser,  not 
with  that  exactness  which  wouhl  he  net^issary  il  the  'rrihunal  were 
iwked  to  asseSH  the  damages  ciiused  to  each  claimant,  hut  with  sullicient  exactness  to 
oiiahlo  tho  Trihunai  "  to  awjird  a  sum  in  ;;roHsto  ho  paid  hy  (ireat  IJritaiu  to  the  Cnited 
Stiito.s  for  all  liie  claims." 

The  United  Htates  cannot  recojjnize  the  report  of  Messrs.  Cohen  and  Youn;^  as  any 
httHis  for  the  estimate  or  computation  of  indemnity  hy  this  Tril>uual.  To  that  coni- 
iiiittee  as  a  Hoard  of  A.ssessois  tlu^  United  States  h.ive  not  referreil  these  claims,  neither 
liiiM  this  Trihunai  sonjrht  the  report  of  those  gentlemen  as  the  opinion  of  experts. 

The  Counsel  of  the  United  States  will,  however,  call  the  attenlicm  of  this  Trihunai  to 
ittine  of  the  general  characteristics  of  (he.se  claims  as  they  apjjear  in  the  lists  of  claims, 
;iud  at  the  sanw)  time  will  note  ctntain  comments  made  thereon  hy  Messrs.  Cohen  and 

The  claims  now  under  discussion  (excluding;  those  for  increa.sed  war  premiums)  nmy 
IwMlivided  into  two  {general  classes  ; 

1.  Claims  for  the  allej^ed  value  of  prop«'rty  destroyed  hy  the  several  cruiMcrs. 

'v'.  ('laims  arisini;  from  daimi}>;e»  in  the  destruction  of  jiroperty,  hut  over  and  ahovo 
it«  value. 

Ilinier  the  first  class  would  he  included,  («)  owners"  claims  for  the  values  of  {jood.s 
ilwtroyed ;  (ft)  nn^rchants' claims  \'oy  the  valiu-s  of  floods  destroyed:  (i)  whalers  and 
liniiermen's  claims  for  the  values  of  oil  or  tish  destroyed  ;  (</)  j)assenjiers.  otHcers,  and 
Hjiilors' claims  for  the  \alues  of  per.sonal  property  destroyed  ;  (r)  the  claims  of  insur- 
ance, companies,  for  the  values  of  property  destroyed  for  which  they  had  ])aid  thoown- 
Wrt  the  insurance. 

Under  the  second  class  of  claims  would  he  iiududed,  (u)  owners'  claims  for  the  loss 
i)f  charter-parties,  freights.  At;, :  {b)  merchants'  claims  for  the  lo.ss  of  expected  i»rofits 
oil  goods;  (c)  whalers  and  lishermen's  claims  for  the  prospective  catch  of  oil  or  fish  ; 
id)  passengers' claims  for  various  injuries  other  than  in  the  loss  of  baggage  ;  (<;)  ofli- 
cers'  and  sailors'  claims  for  wages  and  exi>ens(vs  until  their  arrival  home. 

As  to  this  tir.st  general  class  of  claims,  the  Counsel  helieve  that  theTrihnn.al  will  find 
that  they  are  fairly  stated  hy  thcclaimant.s.  It  was  possihle,  doubtless,  for  Messrs.  Cohen 
aud  Young  to  find  therein  some  claims  which  seemed  to  them  to  have  bien  exaggerated  ; 
but  certainly  as  to  the  value  «)f  j)ro|)erty  this  Trihunai  must  regard  the  sworn  valuation 
of  men  who  owned  the  property  destroyed,  and  who  made  their  estimates  at  or  about 
the  time  of  its  destruction,  rather  than  the  estimates  of  Messrs.  Cohen  and  Young,  who 
havn  no  knowledge  of  the  property  destroyed,  except  that  tlm  claimants  say  it  was  of 
a  certain  value. 

The  owners  of  vessels  have  generally  sought  to  establish  their  claims  by  a  sworn 
iiicniorial  setting  forth  the  facts,  describing  the  vessel,  and  stating  her  value.  In  some 
instM-inces  thoy  have  presented  tho  ccrtilicate  of  underwriters  or  shii»-bnilders  in  support 
of  their  statement.  An  examination  of  their  several  claims  will  show  that  the  owners 
have  by  no  means  given  such  values  to  their  vessels  as  would  show  th(>m  to  have  been 
of  iMi  equ.al  value  per  ton.  Ihit  this  is  no  evidence  of  exaggerated  value,  iis  Messrs. 
Cohen  and  Young  would  seem  to  imply,  but,  rather,  being  correspondent  with  tho  fact, 
namely,  that  the  vessels  are  not  of  e(|nal  value  per  ton,  indicates  that  tho  owners  have 
placed  a  fair  valuation  ni)on  their  property. 

Messrs.  Cohen  and  Yonug  have  made  some  investigations  from  which  they  have  con- 
cluded that  the  price  of  $40  per  ton  is  a  liberal  estimate  of  the  average  ^^    ^^^^ 
market  price  of  the  merchant  ves.sels  destroyed  by  the  Alabama  and  other   nr'"l"h"VIt.ni,ie  '»f 
cruisers,  and  it  may  be  well  to  notice  how  they  arrived  at  this  conclii-  '|;',7JX.'.''  lVi'"  ""' 
ition ;  for  it  will  then  appear  how  little  value  can  be  put  upon  the  .same. 
IVy  say,  vol.  vii,  Appendix,  British  Case,  p.  22,  "  We  have  been  at  some  pains  to  ascer- 
tain the  average  price  ])er  ton  which  was  realized,  shortly  before  the  time  of  the  cap- 
tures, in  the  ports  of  Liverpool  and  London  by  a  sale  of  a  very  large  number  of  vessols 
belonging  to  the  United  States,  and  it  seems  to  us  to  be  a  fair  inference  from  the  fact  of 
these  sales  being  efl'ected  in  England,  that  the  prices  obtained  here  did  not  fall  short 
of  the  market  value  in  America." 

The  Counsel  maintain  that  no  average  price  or  uo  conclusion  could  be  more  unjust 


««; 


25(> 


AWJl'MKNT   01'    THK    INITKI*    STATKH. 


tliiiii  this.    'I'lio  I'lK^t  bciii^  that  liritiMh-hiiill  (Tiiiscis  wire  (h-stinyin^ 
Pri(i-«  .,t,'iuii..i   cviTv  I'liitcil  States  voHsi!  th'V  conUl  liiiil,  led  sriiiin  Uiiitfil  HtjitfN  ( iti. 
ctrriiMi.  /('IIS  to  Hi'M  tht'iF  sliips  ti>  I'.ii^liMhtii*!!),  who  I  oulil  lly  ovt-r    thrill  il  ttit<; 

tliat  woiiM  Miive  thfiii  traiii  thiM<l<fstiiu:tioii.  I'ikUt  tht'Ncciiiiiiii.stuincs, 
it  has  pniltiibly  hfoii  possibhi  lor  Mcsms,  C'ohisn  anil  Yoiiiiy;  to  liiid  at  LiMipool  jiiiil 
LoinUtn  the  record  of  the  ternis  of  transfrr  of  many  slii|>sol' tiie  United  States  to  I'liiliKit 
Hiihjcets.  Itnt  it'  this 'I'rilinnal  sliaii  lind  tiiat  (ireat  I>ritain  has,  hy  any  att  or  imiis- 
sioii,  tailed  to  fiillill  any  of  tin*  duties  set  forth  in  the  three  rnU-s,  or  rerot^nized  by  the 
jtrincijih's  of  internutional  hiw,  not  ineoiisistent  witli  sneh  ruh's,  and  shall  certify  ^luU 
fact  as  to  the  Alabama  and eaeli  of  theot her  (M'liiseis,  certainly  it  will  not  IIkmi  inodiil 
to  award  that  (iieat  Britain  shall  pay  for  those  vessels  which  the  Alabama  destroyed 
at  tile  low  rateal  whii'h  l')n>j;lishmcn  were  enabled  to  buy  otlitM'  vessels  of  the  llmii'il 
States,  which  were  sacriliced  rather  than  to  run  the  risk  of  their  capture  by  the  smim 
crnisei's,  And  further,  the  value  lo  a  citi/cn  of  the  lluitc.tl  States  of  a  ship  in  LoikIimi, 
under  tho  Itritish  Hag,  is  not  tliu  same  as  Iwv  value  to  him  under  tho  lla;^  of  the  Uiiititl 
StatOH. 

Hy  the  laws  of  the  I'liited  States,  certain  privileges  are;;iven  to  vessels  built  in  tiic 
United  States  and  owned  by  citi/eiis  of  the  I'nited  Slates,  and  practically  no  vchkcI 
can  I'arry  the  Hag  of  the  I'liitcil  Stales  unless  it  u  as  Imill  yi  llic  I'liited  Slates.  'J'lu. 
object  of  Ibis  law  is  to  encourage  ship-building  in  the  United  States,  and  tln^  etrect  i,{ 
it  is  to  make  ships  built  in  tin;  I'niled  States  more  valuable,  to  citi/ens  ol'  the  I'liilcd 
States  than  similar  ships  built  out  of  the  I'nited  States  would  bi^  to  citi/ens  of  Jlic 
Unitiid  States,  or  than  the  same  ships  would  be  to  any  persons  not  citi/ens  ol'  tin- 
United  Stall's,  'riierefoie,  the  price  at  which  a  United  .Slati-s  ship  can  be  s(dd  in  (iie;il 
Itritain  is  by  no  means  the  reiueseiitalive  of  her  value  to  a  citi/en  of  the  I'nited  Shuik. 
tor  tlie  United  States  citizen,  while  In;  owns  her,  is  able  to  employ  her  in  certain  tunic 
and  eonimeri'e  in  which  the  Jbitish  siibjeia  cannot  eni|tloy  her.  t'onse(|Uently,  liiit 
few  United  States  vessels  have  ever  been  sold  in  England,  except  when  tlu'  Alaliaui.i 
and  her  consorts  were  burning  all  vessels  that  carried  tin;  Hag  of  the  United  Statth, 
Certainly  those  United  States  citi/.eiis  who  lost  their  vessels  by  the  Alabama  must  imt 
bo  jiaid  for  tliem  at  the  rate  at  wliich  other  citizens  of  the  United  .States  sacritiiid 
their  property  through  fear  of  the  same  danger.  Tin;  fact  tliikt  a  largo  iniinbei  of  vcn- 
hoIh  were  transferred  to  the  Mritish  Hag.  though  it  has  destroyed  the  comnierce  of  tlic 
United  States,  may  have  saved  (ireat  JSritain  from  the  liability  of  jiayiiig  for  the  ulwi- 
lute  destruction  of  the  vessels  transferred.  Ibit  it  cannot,  injustice,  be  held  to  luesciit 
a  standard  of  value  for  others,  not  sacriliced  through  fear  of  burning,  but  actually 
burned. 

The  owners  have  estimated  the  rmind  value  of  their  [iroperty  as  vessels  of  the  Uiiitod 
States  to  citizens  of  the  United  States,  and  at  that  rate  it  must  bo  estimated  iu  the 
award  of  any  gross  sum. 

What  has  been  .said  in  regard  t(»  the  estimate  put  upon  the  inercli.int 
vessels  by  Messrs.  Cohen  and  Young  will  also  apjdy  to  their  estiiuaU' 
put  upon  the  whaling  and  tishing  vessels.    They  say,  page  IS: 

"Tho  iii(|uiries  that  wo  have  instituted  convince  us  that  an  average  rate  of  $1(11' 
1)01'  ton  will  amply  represent  the  value  of  the  whalers,''  and  tho  context  sliowc 
that  this  estimate  incliules  the  oiittit  also. 

From  page  17  of  their  report  it  ai»pears  that  the  average  r.ate  of  the  claims  for  out- 
fits, (;{2  in  number,)  which  are  luado  distinctly  and  .separately  from  the  claims  for  thf 
value  of  tho  vessel,  is  at  the  rate  of  |8S  per  tmi. 

'J'ho  Counsel  ask  tho  Tribunal  to  assume  that  these  claims  for  outfits  are  strictly 
correct.  The  owners  of  each  ves.sel  keep  a  sejiarati-  and  accurate  account  of  all  the  ex- 
jiouses  in  outfitting  each  vessel,  and  when  they  made  their  claim  for  tho  loss  of  a  ve*- 
sel  aud  her  outfits,  as  far  as  the  claim  for  outfits  was  concerned,  they  simply  copied 
from  their  books  tho  statement  there  contained  for  moneys  expended  in  her  outfits,  and 
hy  which  they  can  establish  the  claim  for  the  same  if  ever  they  are  called  upon  tu 
do  so. 

Taking,  then,  this  statement  of  outfits  as  correct  aud  true,  the  estimate  of  Mcssik. 
Cohen  and  Ymmg  leaves  only  $12  i)er  ton  as  the  average  value  they  would  place  iipou 
tho  whaling  vessels,  which  value  is  by  their  own  estimate  ouly  about  one-quarter  of  tlu' 
I>rice  at  which  vessels  of  the  United  States  were  sacriOced  iu  Eugland,  and  a  uiiieli 
smaller  proportion  of  what  the  same  vessels  were  worth  to  citizous  of  the  United  Statcti, 
provided  they  could  have  carried  the  Hag  of  the  United  States  free  from  the  dauger  ot 
boiug  destroyed  by  the  Alabama  aud  other  British-built  cruisers. 

Iu  this  couuoctiou,  .and  as  contrasted  with  the  estimates  of  Messrs.  Cohen  aud  Young 

i,.ttcrofMr  Cr.po  *'^"'  Couuscl  tofcr  to  thofollowiug  coutract  of  aletter  from  Mr.  Wm.\\. 
Crapo,  a  very  intelligent  aud  respectable  geutloman,  under  whose  direc- 
tion most  of  the  claims  for  the  destruction  of  the  whaling  vessels  were  prepared.    (Sw 
his  letter  to  the  Secretary  of  State,  vol.  vii,  U.  S  Doc,  p.  103.) 
Ilo  says : 
As  the  attorney  for  nnuierons  claimants,  I  have   prepared  and  forwarded  to  the 


WlinliMH  mill  tUlf 

tit!  ^t■^.^.■lf-. 


NOTE    P. 


[•ONCKRNING    CLAIMS    OF    IN'DI VIDUALS. 


251' 


t\»\\  i>rii 


Stilt*'  I)«i|iarHtitMit  of  tlio  l!nit(MlStivtos  tiictimiials  iiiiilcliiitiiN. sotting f'»itli  thi;  dt'stnic- 
tidti,  li.v  i'oiift'di'i'iUi*  iriiiMcrH,  of  ti  liiifjo  iiiiiiiImt  of  sliipM  :iii<l  tlu-ir  carync'i,  ((wiicd  liy 
incrclitiiits  hy  N<'W  Hidtiird  iiiid  its  vicinity,  uimI  prayiii;;  I'oi  Miiitalili' coiii|nMisiitit>ii  fur 
tlio  loss  of  tJK'ir  ))i'o|t(  rty  ami  t\w  thuuixav*  it'siiltiti;;  tlK-rclVoiii.  'I'lic  claiiiis  tltiiH  ]ni'- 
piircd  and  furwardtd  icincscnt  nearly  forty  -ddpH  In  nuiiilu'r,  with  their  whalinj;  ont- 
litHund  eaijioes.  The  ay:;;rej;at<i  anionnt  elaiiiie<l  liy  these  |iei'Mins  tor  property  d(>- 
Htreyed  is  very  lar>;e,  and  I  lie;;  leave  to  ntate  the  mode  adopted  in  li\in;i  valnes  and 
cHtiiiiatin;;  damages.  Many  (d'  the  whips,  espeeially  those  Imrned  l>y  the  Alahama,  had 
liiit  reeently  sailed  I'roin  their  home  ports  when  destroyed.  The  valnes  claimed  forshi|) 
iiiid  oiittits  in  such  cases  weri'  liased  upon  the  aetna!  (  ost  ami  present  worth  of  the 
[iropeny,  as  can  lie  alinmlantly  and  conelisively  iirove<l  when  tho  occasion  reipiires. 

•' Tlie  lar^^e  numlier  of  wlnile-ships.  |u  •  which  claims  have  lieen  |iresented  liy  me, 
were  d^^stroyell  liy  tin:  Shenandoah  in  the  Arctic  Ocean.  In  cfimpntin.!;  the  dama;;e  sns- 
taiiicd  liy  this  de>trnciion.  ]irices  weit^  p'aced  upon  each  vessel  and  its  ontlit  which 
it'iircsenttMl  their  valne  as  ihcy  were  in  that  distant  ocean,  and  at  a  snm  less  than  the 
(list  ol'  i'c|dacin;j  Ihrm.  The  more  valnalde  ships,  w  ith  their  ontlits,  weic  estimated  as 
werth  $(1(1,(1(111  each.  This  was  the  snm  at  which  they  were  insured,  in  cases  where  iti- 
Kiiraiicc  had  heen  ctteeted.  This  sinn  was  less  than  the  actual  cost  to  the  owners  in  rt>- 
pliuinjt  them  at  the  hmne  port,  liy  \essels  and  ontlits  of  ei|nal  ijnali'y.  An  appraisal 
iif  tlic  several  vessels  liy  ship-linilders  and  ship-lirokers.  and  the  xduchers  for  purchased 
(luttits,  will  conlirm  the  justness  of  th«  valuations  made  hy  the  claiimints." 

In  view  of  this  letter  of  Mr.  Crapo  the  ('onusel  maintain  that  thisTiiliuiial  ou;;ht  not 
to  make  any  diminution  in  the  valne  placed  upon  thi'sc  vessels  and  their  or.' lit s  hy  the 
iiwaers  thereof. 

The  second  division  of  cl.iims  umler  w  hat  has  heen  cilled  the  first    ,,„  , ,,^  .i,,,,,,  ,,,, 
iliiNH,  is  the  claims  of  merchants  for  tlit^  values  of  {roods  destroyed. 

An  exannnation  of  the  list  of  ( laims  will  show  that  these  claims  arcjjeneriilly  proven 
liy  the  sw<nii  memorial  of  the  im'rehant,  settinji  forth  that  he  owiu-d 
tlicni,  that  they  wer<<  on  hoard  the  vessel  destroyed,  and  that  they  were 
iif  a  certain  valne,  which  nu'inorial  is  accompiiuied  hy  the  hill  of  ladinj;  iiml  invoice, 
tliii  one  conhrminj;  the  statement  that  they  were  on  hoard  the  vessel,  and  theother  the 
Htutenient  that  they  were  of  a  certain  value. 

Though  some  few  of  these  claim  may  have  heen  increased  hy  inclndinj;  in  them  tho 
cxpecteil  prolits  on  the  floods  and  the  insurances  on  the  sanu',  as  well  as  on  the  jirofits, 
((if  the  rif^ht  to  in<lnde  which  i»nilit8  ami  insurance,  in  all  the  claims,  mention  will  he 
hereafter  iinide,)  yet  we  are  eoiitident  that  the  true;  value  of  the  ;;oods  rei)reH«'nted  in 
this  class  of  claims  is  the  ]iric»r  named  in  the  claims;  tlm  claimants  have  made  their 
ilainis  exjieeting  at  .some  time  to  he  called  ni»on  to  prove  the  valne  of  th»^  jirojierty 
destroyed,  hy  the  jtrodnetion  of  the  invoices  winc'h  will  show  the  prices  i»aid  for  them. 
We  cannot,  therefore,  in  any  way  adndt  that  Messrs.  Cohen  and  Vonng  are  right  in 
stating  that  they  are  coidident  that  they  are  consith-rahly  overestimating  the  value  of 
the  goods  at  the  port  of  shipment,  hy  assuming  such  value,  together  with  the  interest 
u|)  to  the  time  of  eai)ttire,  tu  be  oidy  I'J  per  cent,  less  than  the  aggregate  umouut 
ilaimed  in  res]iect  to  the  cargoes.     (See  vol.  vii,  Uritish  Appendi.v,  iiji.  *J,'>,  2H.) 

Another  division  of  claims  under  the  tirst  da.ss  emlinices  the  claims  of  the  owners  of 
whaling  and   tishing  vessels  for  the  value  of  oil  or  fish  on  board,  and  ,    , 

ilestroyed  at  the  time  of  their  eaitture.  Thes<!  claims  Messrs.  Cohen  and  Mr..y.>i  ..n  «iiiieri 
Young  propose  to  estimate  very  easily  by  ignoring  all  claims  nuwle  by  «'"' i'-'""« "-"''" 
the  owners  for  secured  earnings,  and  by  allowing  inttut'st  at  the  rate  of  ti.'i  per  e»'nt. 
per  aiumin  on  the  value  of  tlio  ship  and  outfit,  and  in  addition  .')  jier  cent.  i)er  ton  per 
(lay  to  meet  expenditures  on  account  of  wages  and  other  disbursements.  Such  an  easy 
calculation  as  this  enaV>les  them  to  decide  that  the  secured  earnings  of  the  forty-one 
whale-ships  de.stroyed  by  the  sev«'ral  cruis<'rs,  together  with  the  wages  of  the  oflicers 
and  crews,  and  all  other  disbursements,  amonnteil  to  but  $;{(»1,75H.  Taken  as  a  sample 
of  other  estimates  made  V)y  Messrs.  Cohen  and  Ytiung  after  "careful  consideration,"  (p. 
1^,)  it  may  be  well  to  examine  this  estinnite  a  little  more  closely.  Their  estimate  in 
round  minibers  is  that  the  forty-one  whalers,  down  to  the  time  of  their  capture,  had 
ejirned  for  their  owners,  their  oflicers  and  crews,  the  sum  of  $;?01,7r>9.  The  oflicers  and 
crews  of  these  whaling  vessels,  on  an  average,  consist  of  at  least  twenty-tive  persons, 
,  and  there  were  on  board  these  forty-one  whalers  more  than  a  thonsand  persons,  cap- 
tains, oflicers,  and  sailors,  whose  earnings  and  expenses  in  this  most  hazardous,  but  at 
that  time  most  lucrative  employment,  are  estimated  at  one-cpiarter  of  $301,759,  (see  p. 
Iti  of  report  of  Messrs.  Cohen  and  Young,)  or  at  about  $7,'>,(K)0,  which  divided  propor- 
tionately would  give  to  each  man  not  more  than  $75.  When  it  is  remembered  that 
very  few  of  these  men  had  been  away  from  home  for  less  than  six  months,  and  that 
many  of  them  had  been  away  for  two  and  three  years,  it  is  easy  to  see  that  the  esti- 
mates made  would  not  cover  their  expenses,  much  less  their  eaimings. 

Under  these  circumstances,  knowing  well  the  large  profits  that  our  hardy  seamen 
nave  made  in  whaling  voyages,  we  must  earnestly  protest  against   their  claims  for 


.#« 


-"i*^^ 


Ji52 


ARGIMKNT    OF    THE    UNITED    STATES, 


actual  earnin^H  IxMiifj  so  rediict  ■!,  and  fiUtluT  on  wn  shall   a<j;aiii  fall  tlie  atttMition  of 
tins  Tribunal  to  tlif  i  laiinn  of  ortictii's  and  .sailors. 

Tlio  ]>roposiil  to  Hub.stitutn  the  «wtiiuafo  of  Messrs.  Coiifii  and  Yonng  scoms  oy  no 
means  nL'e«\ssary  or  Just  iri  vii-w  of  tlio  facts,  as  statcil  by  Mr.  (.'rapo. 

H<^  says,  (1'.  S.  Dot;.,  vol.  vii,  p.  101,)  "Oil  and  hone  on  board,  and  di'stroyod  wjtli 
the.  ships,  have,  biion  made  the  si.bji'(;t  of  <daiin.  'I'hc  (inantity  hits  bt^en  stati'd  ii|inii 
the  sworr<  evidi^nc*'  of  th<>  inasttirs  anil  otHicors  id'  tlui  rcspcctivf  vcssids.  and  th.;  Viihip 
hiU)  liium  iHin-rtainod  ))y  tli<-  cnrrcnt  rnarkot  quotations  at  tli«  time  vviicn  said  oi]  and 
bone  V'oul  I,  if  not  destroyed,  have  found  a  market  and  sale." 

Wfi  are  eonh<leiit  that  enoii^fh  has  been  stated  to  eonvinee  tlie  Trilnmn!  th.it  tlm 
nworn  slatenuMit  of  the  m:)sters  and  oflicers  must  i>e  taken  as  l)etter  evidence  of  \vli:it 
was  on  lioard  the  wha!e-slii|is  destroyed  l)y  the  A!al)ama  and  Shenandoah  than  the  so- 
ealle<l  estimate  of  Messrs.  ('uln-n  and  Voun;x<  who  would  lo.ike  it  apjiear  tliat  tliey  havp 
been  able  to  arrive  at  the  percentaife  winch  i,ii,il  ..ii  and  bone  Ur.-.r  to  tlie  value  of 
the  ve.ss(ds  and  o'ltlits  as  ajj;ain  estimated  i)y  Mi-ssrs.  (Johen  and  Vonns;,  and  liiidi-r 
these  eirciimstanee,"!  the  atrention  of  the  Trilmnal  is  particularly  directed  to  tJie  f.ift 
tliafc  tiiis  |terc<^nta,>.?f  i.-.  made  fo  apply  l»y  Messrs.  Cohen  and  Younj^,  not  t;-  the  wholi- 
len<];tii  of  tlie  voyajLje  id'llic  several  wiialers,  but  in  many  instances  only  from  tli"  ihitc 
when  rile  ship  .-.;iih'd  from  linnohilu  or  some  other  jiorl  .it  wiiiidi  it  liad  hisi  touchcil. 

In  rejjanl  to  the  claims  of  pitsseiij^eis.  otticers.  .and  sailors  for  the  valm-s  of  personal 
i'.T-.,„ii.-tr.ctK  propertN  di-siroyed,  Messrs.  ( 'nheii  and  Vouiii;  estimate  it  at  the  rate  of 

.'S;.')  pi-r  Ion  on  the  vessel;  capt  iired  bv  t  he  Sin-nandoali,  (see  p.  17.  Itril. 
Aj)]).,  vol.  vii,)  and  at  the  rate  of  s!!  per  ton  on  some  ol'  the  vessels  captured  by  tlic 
other  cruisers,  (sc  )>p.  17.  'Ir^.  Mrit.  .\])p..  vol.  \ii.;  and  on  other  imli\'idual  vessels  they 
have  chosen  to  make  ceit.-iin  ilc<lu''tions.  as  to  them  seemed  liest. 

Mi'ssis.  ('(dieii  and  \onn;4  siati'  ;is  .i  I'.ict  th.if  the  claims  for  personal  etfrcts,  Ac,  mi 
boa«'d  vessels  destroyed  l>y  the  .'shenaridoah  are  made  a^  the  avcr.'ijic  r;iteol"$H  per  Imi. 
'fhiiikinjj  thi.s  to  be  excessive,  t bey  j^ive  their  opinion  that  if  the  lo.ss  of  personal  et 
I'ects  in  the  case  id' the  Shenandoah  ■'  be  estiniated  at  the  avei'ji^e  rate  of  S.'i  ]>er  tun  of 
tlu!  c,'ip>  nreil  vcs.scl,  adei|n;ilc  conipensat  ion  will  lie  provided,  especially  ;is  it  appeal^ 
fiom  (.')  ptain  Senna*  s"s  juniii.-il.  and  other  sources  ot'  inl'ormation,  that  in  many  ca.sc-, 
the,  mai-'ers  ami  crews  had  ample  opi<ortnnity  of  saving;  a  consideiable  part  ot'  tlieii 
property."  Messrs.  '.'olien  anil  \ouiii;  nmy  have  t'nnnd  tin'  above  statement  ^o  lie  satis 
fat'ton,  to  themsel'es;  Iml  w  r  du  not  expect  that  this 'I'ribunal  will  timl  in  the  journal 
of  Cajitain  .Semmcs,  who  pndiaMy  never  even  s;iw  the  Shenando.ah,  a.ny  evidence  a.s  t« 
the\alm^of  the  peisonal  eilects  of  the  passen^eis,  ofiiccrs,  ami  crew  ol'  the  ve.s,si!l.i 
bunu'd  by  tinit  cruiser. 

l'os,-ibly  some  of  the  claims  ot'  this  class  m.'iy  be  exa<j;  fie  rated.  Ihit.  on  the  otlici 
hand,  a  lar<;e  (piantity  of  sier.suiial  property  was  destioycd  on  boar'd  these  vessels,  wliicli, 
tliouf^h  small  in  the  anionid  bclon,,'iii;i  to  eacli  imlividnal,  'vas  larijo  in  the  su!n  total, 
and  i'or  v  hich  no  claim  has  yet  been  made.  And  further,  as  to  sonm  of  the  claims  niaili' 
for  i)ersoni,l  j>ri>perty  on  board  the  whalin;f  \  essids  destroyed  by  the  Shenandoah,  the 
oflicers  and  -aplain.-.  bad  with  them  articles  of  various  kimls,  and  ot  ctmsiderable  value, 
for  the  imrpose  of  tradin;:  wiih  the  natives:  and  it  is  t'or  such  kind  of  property  that 
wo.  understand  lliat  the  claims  of  the  master  and  two  of  the  crew  of  the  Abij;a'l  were 
made,  as  iil.so  the  claim  of  the  m.-istcr  and  mate  id'  the  Oipsey. 

If  the  estimates  I. f  Jilessrs,  ( N>hen  and  \  oiinjj;  cantud  i»e  depended  upon  when  niadc 
ftH  an  averaf^e,  still  le^sl•,ln  they  be  when  an  attempt  is  made  to  estinnite  particidai 
(daims.  (See  p.  "J.'i,  l$rii.  App..  vol.  vii.i  Keiimndieriny;  that  Messrs.  (Jolnm  and  Vonn^ 
have  no  other  knowleiii^e  of  th<'  (laimants,  or  of  what  property  they  have  lost,  tlian 
cr.a  be  obtained  from  ttio  list  of  claims,  we  are  at  a  loss  to  know  why  tliese  jrentleintn 
s' oiiid  decide  that  the  idaims  of  the  ca]>tains  of  the  IJrilliant  and  (-'.  Hill  should  bi' 
iriado  to  be  et|na!  to  ea(  h  other,  or  why  the  « laini  of  the  chief  otUcor  of  the  Ex|>ri'''> 
Hoenis  to  bo  excessive  or  why  any  of  tin;  other  deductions  jn-ojioseil  Hhonid  be  niaiii'. 
mlesH,  as  in  tln^  case  of  t'"'  Aliiia,  the  value  of  lli»*  personal  et^'eets  of  the  caiitain  srcnis 
jy  them  to  have  luseti  c*i.  idered  .!s  ha\  injj  '.oine  ratn>  to  the  tonna{i;c  of  tin^  vcKsei. 

'I'he  (dain'  of  iiisnrance  companies  for  tin?  value  of  property  (b'stroypil. 

'■'"'"•  "'   ■"    for  whi(  h  they  have  paid  the  owners  the  insurauce,  is  the  last  diviiiioii 

under  the  !  laims  ot  the  iirst  (dass. 

We  readily  atlndt  tint,  whenever  'he  owner  puts  forward  a  claim  for  his  loss  at  tin' 

^.    .    ^,     ,         sanut  time  tliat  the  insiirance  comi)anv  also  <  laims  the  nnme\  paid  liy 

miiiportH.i    by  ih*  tlioHi  111  rcspcct  ot  tli(»  samc  losH,  tlieii  only  one  value  ot  tln^  projierty  ili'- 

cu.i.ii sua...  Htroyed  can  be  allowed;  but  we  iusist  that,  in  all  such  cases,  the  award 

should  be  eipial  to  tho  full  value  of  the  property  destroyed. 

It  wan  the  intention  of  tho  United  Statt^.s,  in  preparing  the  list  of  claims,  to  iiiiiiiiiU' 
whenever  double  clHiins  .of  this  class  occurred,  when  it  was  evident,  upon  a  siniplt!  e\ 
nminatinii  of  tlie  impers,  that  such  double  claims  were  made,  and  it  will  be  found  timt 
very  few,  if  any,  id'Hucii  claims  exist,  exci^pt  in  the  t^ase  of  some  of  the  whalin>{  vcssol.i 
which  were  destroyed  by  the  Hheiiamloah,  tliore  beinjj  none  of  this  class  of  double  cluiiin 
in  the  case  of  merchant  Hhijis,  or  ))roperty  destroyed  on  luerchant  siiij)s. 


'.Vllil'll, 
Ml  tolnl. 

IS  iiiaili' 

i):ltl.  till' 
Villlll', 

rty  lliai 
;,i'i  wc-re 

Ml  \ii;i(li' 
irticiil.ii 
il  Viiiiiig 

si,    tllilll 
itll'IIUIl 

tdiilil  b<' 

he  iiia'li'. 
Ml  Sit-ins 

i'«!KSI'l. 

I'nlroypii, 
<tivi8iuu 

fvsH  :it  the 
paiil  by 

Dcrty  ill'- 
I"  awaiil 

iiulioato 
liljilt:  f'X 
II nd  lliiit 
j(  ves*'l-i 
ly  olaiiii'' 


NOTE    D. f'ONCEKNING    CLAIMS    CiF    IMUVIDUAI.S. 


253 


I" 


to  tJie  cliiiiiiH  oC  the,  sccftiid  (iliiss  for  flio  IriKs  itf  cliaitJ-r-purtinK  or  ('i('if;lits,  it  iH 
lO.ssibl.    ;I'''f'  in  a  (HTtiiiii  hciisc,  donlilc  claiiiiH  iimv ,  in  a  f<!\v  iiiMtaiiccs. 
tiavt'  Ix't'ii  num.-.  liy  tilt',  owners  of  llic  ship,  iiiid  l>,v  tlic  <-hiirt<'r<'rs;  Imf    ,„'.^'|",',"' """""  ■"■ 
tlii-sf  iliiiililo  ('lainis  art;  of  an  amount  aIniuHt  inappri'cialilf  as  coiniiared 
witli  the  sum  total. 

Tlirri'  may  also  ht'  sunif  clainis  t>f  tlif  Kffontl  class  for  tiit;  Itws  of  protits  on  jjoods  and 
iithfi   iiiiTflumdis,   wliifli  ilo  int-lud!'  (lie  frt'i;;lit   and   insiiranrt-  paid  on 


ihrsi'  noofls 


r.iit 


liflifvt;  that  tlit'Ht'  claiiiiH  slimiltl  lif  allowt'il  tt»  the 


,(«*«  (ll    ITdtilH. 


Ill 


II  i'\ti'iit  of  tilt!  frciirlit  and  iiisiirant'it  paitl,  for,  at  the  l;iiit;  tht^  ijoods  were  tlestroyod, 
tlii'V  had  fost  the  nierclianl  what  he  hail  paitl  for  them,  tt>;iether  with  tiie  freij^ht  anil 

illSU 
III'  rii 


i'an<'i'  lie  had  paitl  upon  ihem,  and  eertainly  the  value  of  those  ^oixls  to  him  eannot 

iisiiler<;tl  as  less  than  this  a;i;^reirate 


(laiiiis  have  been  atlvaneeil  for  what  may  he  eonsideretl  as  prosjicctivcs  losses  in  the 


iiss  III  the  voyajre  t»l'  a  t;hartereil  ship,  in   th 


■>tiUftion  ot'  jf'ioils  sliippt^il  to  he  stdd 


it  a  iar;;e  )>rolit  in  attistant  pait,  or  in  the  hieakiiij^  up  tit' a  whaliny;  season  wliieli  h 
iii^t  lii'<;Mn  in  a  remote,  sea. 

All  I'laiiiis  t»f  this  kintl  Messrs.  Cohen  anil  Vniiiiii  think  slioiilil  he  ahsoliitely  rejetdfd  ; 
iiiit  we  maintain  that  sneh  a  I'ejeci  ion  woiiM  lie  tlireetly  eontraiy  to  tin  jrtMier.il  laii- 
:^iiaj;e  lit  tilt;  lioMian  law :  '  (.,iiiaiit  inn  niea  inte'.t'iiit  ;  itl  est.  i|iiantiim  inihi  ah  est  niiaii- 
tiniijiie  liierari  potiii,"  and  would  also  he  rontrary  to  the  i'Mstin;f  rule  of  the  einnmiin 
l.iw,  wtiieh  i.s  thus  stated  In  tin;  last  etlitionof  Setl;;wiek  on  hamaiies.  paj^e  •■^ti,  note: 

"It  may  now  he  ;issnmetl  to  he  the  H;eneial  ''iile  that  in  aetions  id'  tort,  wliere  the 
iiiiiiiiint  of  prolits  of  whiili  the  injnreil  party  is -w  prived,  as  a  lejiitiinate  j  ^^  ^  ^^^^ 
risiilt  of  the  tres|iass,  i;in  he  shown  with  reasonaMi'c' i  tainty.  sneh  prolits  i«,<  nt  ih.-  .iiihi^ieH 
(iiiisiitiite  to  that  e.Meiit  a  '•afe  mi  asnre  of  tlania<;es.  In  these  eases  the  ■'•  ^'^•'•"'  "■  '■'•' 
Mile  ailopteil  with  reteient'.e  to  itertaiii  hreaehes  oi'  eoiitiail  whiili  makes  the  oll'iiilin^ 
party  lialde  for  the  loss  of  prolits,  so  far  only  as  he  foresaw,  or  shoiiltl  have  I'oii  .eeii  that 
|iartiiiilar  eonsei|iieine  of  ids  aet,  dotH  not  apply.  ie  who  <  I'liimits  a  trespas.  must  he. 
iiil.l  to  fontemplate  .all  the  daiiiajie  wliiili  may  I'  iitimately  lollow  Iiomi  his  illejjal  aet, 
«lirtliii  he  iiii,ij;lit  lia\e  loresifii  it  or  lint.  and.  so  lai'  as  it  i^  idainly  traieahle,  he  sliuiiltl 
'iiaki;  comiieiisat ion  tor  it.  To  this  extri.t  the  reeov  erv  ot  a  sum  ei|ual  to  the  prolits 
,(ist  while  fairly  within   the  prineiple  ol  rompi'iisation,  is  also  within  the  limits  wiiieh 


ixrlutle  It  mote  er.nseipieiiees 


Iron 


th 


seale  ill  wlii 


h  tl 


le  wrolli;  IS  Wfli^het 


ll  may  htH  true  that  in  some  instanees  the  eoiiils  of  the  I'liited  Stales  intl  i;ii;;lanil. 

!iiiiiiitl  tiowii  hy  the  rules  td  law  in  prxvioiis eases,  li.ave  retlii lllie  awaril  for  prospeet- 

ivi:  ilaiiiajies  ill  the  tlestnit^tion  of  a  vessel  ami  her  lar-^o,  to  the  low  am.  avera;.ce  rate 
.iliiilei'i'si  upon  loaned  money;  ami  thus,  llioiij;!i  it  is  well  known  that  the  profits  for 
iiiaiitiiiie  ami  mereantile  atlvt  ntiires  are.  ^jeiieially  inneh  y,reatfr  than  those  ohtainetl 
iiiiin  the  loan  of  eapital  at  the  orilinary  rate,  the  iiijiired  party  has  heeii  m.ide  to  siilfer 
(roiii  the  iiialiility  ot'  the  eoiirt.  who.  llioii;^li  they  leeonni/e  the  jiistiec  of  the  elaini, 
,111' limit  I'll  hy  t  lie  elietks  on  their  power  to  est  i  mate.  In  i-e;iard.  however,  to  the  elainis 
iin.M'ideil  to  this  'I'nhiinal  for  damage  hy  the  Ins.-,  of  inolit,  we  eoiilideiitly  e\|ieet  that 
.iiiawaid  will  be  iiiatle  whieh  will  hear  a  tliie  lelal  ion  to  the  jiitat  attiial  ilama^e 
aiisftl. 

What    has  been   already    saiil    as    to    the    loss    l>\     tin;  hre.akin^:    up  of  a  merchant 


vi'vajie,  or  hy  the  tlestrnetion  of  jiootls.  a|>plies  mmh  imue  stroiinly 
!i  the  hreakinir  up  of  a  wlialiii;^  or  lishini;  voya;;e.  Writiii;"  td' ves.sels 
■  ii;;aHfd  in  thest;  voya;;es.  .Mr.  Crapo  says,  ^7  U.S.  l>oes.,  p.  I'.tl:) 

The    vessels  destro.siil   'latl  entered   upon  their  eruises,  anil   were  eni 


Itri'ttkitu* 


itl    %hhltlili(l  ^ 


\\ivi\  in   tilt) 


piiKscfutiiiu  of  tlieii  whaliii);  vo\  a;,'es.  .Mtist  of  the  ships  liati  saihtl  many  thonsantl 
iif  miles  fitim  their  North  Atkaiilie  home  ports,  aronntl  Cape  Horn,  ami,  liaversinji; 
•lir  leiif^th  ol'lht;  I'aeilie  Oieaii,  hail  reailietl  their  whaliiii;-;;rouni|s  in  the  Aret  ie. 
iiy  iiitinihs  hatl  heen  eoiisiimeil  in   the  p.issa;ie.      I'he  ships  eiiifaj^etl  in  this  husine.ss 

umls 
I  oee.iM,  penetrat  ill;;  it  as 


li'.ive  lioiiie  in  the  months  id'  Septembei'  amH  letoher,  and  rem  h  I  lieii  eruisii 
'III'  iKJIowin;;  Ma\,  ami  then  eiilerioy  the  ier  of  that  noilhen 


inal- 


s  up  III  siinimer,  eoiii;iieiiet 


their  w 


hali 


n  .liiiie.  ami  eontiiiiie  the  tat 


wwiii  o 


tlirir  lar^mes  until  the  storms  id  .September  iom(iei  them  to  m.ike  their  way  out  tif 
I'-'linii^'s  Straits,  wheiiee  they  |troeeed  to  nt mil  I'm  another  sea.son's  work,  or  for  the 
||;i-ha;;e  huiiie.  When  the  SJieiianiloali  desfroyetl  Hit;  twenty-six  whale-ship-  in  tli« 
N'Tlli  I'aeilie  and  Aretie,  iliest;  vessels  hatl  eiiteretl  upon  the  portion  of  tln'ir  voyages 
«luili  was  to  remuneratt;  them  for  Hie  loii^  passage  from  home  and  the  loii^j  passable 
'wik  ajjaiii,  whieh  passa^fs  woiilil  atltl  littl"  or  nothing'  to  their  lai^jtM-s.  lieiiee,  the, 
linn  of  Hie  voyage  w  liieh  brings  to  tlio  owners  ami  erew  a  return  for  their  eapital 
s  embiaeetl    in   a    few  months  of  summer  whaliiiu'.      I'he  i^reat  ex|tenso  in- 


.iimI  jal 

'"Ivi'tl  in  sailing  these  ves,si;ls  into  tlislant  seas  hail  been  iiuiirretl  when  the'shenan 
'liMliiaiiit;  upon  them  ami  hiirnetl  them.  If  they  hail  not  been  imdested,  they  would 
Navf  iihlaineil  their  ae(;ustoineil  eateli.  ami  ihe  owners  and  erews  wonhl  havt;  rei;eive»l 
'III!  iKiial  return  for  their  outlay  and  labor.  If,  then,  the  elaim  id'  a  merehaiit-ve.ssel 
liir  the  fieijrlit- money  she   would   have  carmid   upon   the  delivery  of  her  carj;o,  if  alio 


M 


ki*- 


254 


ARGUMENT  OF  TH?:  I  NITET)  STATES. 


lijul  not  liocii   destroyed,  is  a  Junt  and  lej^itininto  one,  and  recognized  a«  one  for  com- 
pensiition,  thiMi  tin- cliiini  for  '  prospective  ciiteh'  is  e(|ually  Jiixt  and  le^iitiinate. 

•'AnotluT  coiisidciatioii  for  the  allowance  of  '  jtrosptictive  <'ateli.'  which  pri'iontM 
itself  willi  iiuuli  force,  is  thi^  interest  w  hich  the  captured  seamen  have  in  it.  Tim 
masters,  olhciTs.  and  cnnvs  oi'  whale-ships  are  not  p.iid  hy  monthly  way;es.  as  in  tin' 
mct'chant  marine,  hut  hy  'lays'  or  shares  in  the  oil  an*l  Itone  taken.  'I'heir  pri)|ioi'- 
tion  of  thrse  «  atchinys  amounts  to  a  i)ercentajje  varyin<>;  from  :><)  to  40  per  cent,  nt  il,,. 
whole  car";!).  'I'liese  men  encounter  the  daiif^ers  and  toil  of  this  peculiarly  hazaninii^ 
business,  and  their  icmuneration  for  the  snitport  of  themselves  and  families  is  dcpi ml- 
eut  upon  the  catch  of  whales  duriu<r  the  short  season  of  summer.  If  m>  allowaiur  i> 
made  for  prospective  catch,  these  men  receive  nothing  for  their  many  months  of  tml 
and  exi)osnre.  This  Inisiness.  when  undisturhed  hy  violence,  is  sure  of  a  return.  ,\> 
certain  as  the  harvest  to  the  farnuM',  is  the  catch  of  oil  to  the  whaleman.  The  avcniu,. 
eatch  of  whales  is  well  known  and  (nnlerstood  by  the  merchant  and  the  seaman 
I'piui  this  knowled^je  o!' ]uol)al>le  a\cra;te  catch  the  sailor  reailily  iimcures  an  advauvi- 
bef(>i'esailin;i.and  his  lam  11  v  obtain  necessaries  aiul  a  support  dnrin;;  his  absence.  In  <  a^- 
of  his  death  or  disaltility  during;  the  voyaj^e,  and  before  any  carjj;o  has  licen  obtained, 
he  or  his  I'amily  share  in  the  whole  catch  of  the  voyjijii',  in  the  proportion  of  his  term 
of  service  to  the  entire  juiiod  of  the  voyajje.  Hy  tin;  burnin;^  of  the  Arctic  ticit 
Captain  Waildell.  of  the  .shiMiandoah,  hjft  these  nuMi  utttMly  helpless  thousands  oi 
miles  away  from  their  honn-s.  and  with  no  means  of  retnruiuj;  to  them.  He  destroyi'd 
not  only  all  their  )>ersonal  etb'cts,  but  In;  (h^stroyed  also  the  earninj^s  of  a  whole  yeai 
of  service,  and  burdem-d  them  with  the  debts  contracted  at  Inune  tor  the  suppiut  m 
their  families  durin<;  their  absence. 

■'  Whatever  moin'y  is  obtained  iVom  the  EuKlisb  Government  for  loss  of  prospectivi' 
eatch,  is,  uinler  the  jirovisions  of  the  shippin>r  articles,  subje.-t  to  division  amon^  the 
otlicers  ami  crews,  in  Uie  proportion  of  tln-ir  respective  '  lays."  IIctk'c  the  anininil 
embraced  in  this  item  of  the  claims  is  not  e!itirely  profits  of  the  owners,  imt  reiu'eseiiti 
damage  to  otJicerH  and  crew,  as  well  as  los-  ot' outlay  and  capital,  and  the  exp(Mises  ni 
cideiit  to  this  business. 

"  In  prei>arinfj  the  claims  whiidi  have  been  presented  to  you.  the  claimants  have 
varied  in  the  amounts  tor  which  they  ask  com)iensation  under  the  item  of  prospeetivn 
eati'h.  This  variation  arises  from  the  fact  that  whale-ships  are  litteil  (or  voyajjcs  ui 
from  three  to  live  years  in  duration,  and  while  some  of  the  shij>s  destroyed  had  par- 
tially  completed  their  voyajics,  others  wre  upon  their  lirst  sea.son.  'I'he  estimafi-s  ot 
oil  ami  boiie  have  been  b.iscd  upon  the  avera^je  taking's  of  these  ami  other  veswels  e, 
gaged  in  such  voyages  as  they  were  pro.secuting.     Oaret'ully  prepared,  accurate,  an,, 


reliable  statements  have  veailv  been  collected  bv  those  interested    in   th 


lish 


wliic.h  exhibit  the  total  i|uantities  of  oil  and  Ixme  taken,  ami  the  number  of  ve.sseU 
employed,  both  inthi'  sjterm  md  right-whale  lislieries.  An  examination  of  these  yeaiiv 
.statenuints  will  demonstrate  that  the  claims  for  prospective  catch  are  not  lictitiotis 
or  excessive. 

"The  prices  allixcd  in  these  estimates  of  '  |)rospective  catch  '  have  mostly  been  lii- 
termined  l)y  ruling  rates  for  oil  and  iione  where  the  same  is  marketed,  at  limes  when 
the  same  \\oii|d  ha\e  fouinl  a  market." 

We  are  conlident  th.-it    if  this  Tribunal  shall  determine  to  award  a  sum  in  gros>.  il 
will  lind.  in  the  facts  .-ibove  stated,  ami  in  the  general  ]uineiples  of  eipiity  and  juNtir 
abundant  ground  foi  making  an  estimate  in  that  award  of  ihinni,^ 


.hid 


I  clannaiit< 

hilt 


have  sustained  in  the  los>  of  ]U'nlit>  on  goods  in  freight,  or  lor  merchant  voyagi-s. 
above  all  lor  those  great  losses  which  ownt 


d  inti 


ei,iin«  nt  tilt' 


ollicei-s.  and  crew  have  experu'iicei 
■.ndden  breaking  up  of  the  long-continuf'd  but  yet  just  begun  whaling  voyage. 
Ou  page  171    of  the  Case  of  the  I'nited  Slates,  it   is  stated   that     ■  it  is  ini]>ossiliii' ,ii 
present  for  the  1 'nited  Sl.itcs  to  present  to  the  Triliunal  a  dctaili'd  sian 
meiit  of  thedam.-iges  or  in,iuries  to  persons  growing  out  of  the  destrii' 
tinn  ol'  each  class  of  vessels.     Kviiy  \  essel  liad  its  oDicers  and  ils  rrt'w 
who  were  entitled  to  the  protect  ion  of  the  llag  of  the  I  nited  .states.  an<l  to  be  ini'hiiini 
in  the  estimate  of  any  sum  whuli  the  Tribunal  may  see  lit   to  award.     It  will  imt  I" 
dilhcult.  from  the  data  v>  hich  are  furnished,  to  ascei  tain  the  nanu's  and  the  toniiau'*' " 
the  dilferent   %  essels  destroyed,  and  to  I'orm  an  cstinuite  of  the   nnmbei   of  h.ird_\ .  Imt 
helpless,  seamen  who  wi  re  thus  deprived  of  theii    means  of  subsistence,  and  to  detn 
mine  what  aggregate  sum  it  would  be  just  to  plac<'  in  the  hands  of  the  I  nitcd  States di 
that  ao'oui't.     It  cannot  be  less  than  imndreds  of  'hoiisands,  and  poi-sibly  millieiiMi' 
dollars." 

To  this  statenn'ut.  ami  to  this  cIohs  of  claims,  we  again  call  the  attention  of  the  li 
bnnal.  feeling  conlident  that  llcr  Majesty's  (ioverinneiit  will  agree  that  the,\  aie  jii^' 
being  in  accordance  with  a  recent  decision  ol'  Sir  Kdward  Thornton,  one  of  I  lei  M.i 
esty's  High  Comniissiom-rs  in  the  nniking  of  the  Tri'aty  under  which  this  Tiibuiial  i- 
now  sitting,  which  deeision  was  given  in  .Inly.  l."^70,  when  he  was  acting  as  .nhiliatui 
on  a  (|uestion  that  had  arisen  between  the  I'niled  States  atnl  Iba/il,  as  to  the  liahilitx 
of  Brazil  to  make  compensation   to   tin;  I'nited  .States  for  the  loss  of  the  whale-sl'i!' 


NOTK    l>. CONOKKNING    CLAIMS    OK    INDIVIDUALS. 


CaiiiJiia,  of"  Now  lit'tlfonl,  throii^h  wlint  was  nllt'y;»'<l  to  liavo  Itoi  ii  tlio  iinitropiM-  iiitor- 
frriMu't'  ol' oiM'faiii  <>t1ict'i>  of  '  lie  ( Jovcnimciit  ot"  IJi'azil,  In  tliiit  rase.  Sir  Kdward 
rhoriiton  (It'ciilt'il  that  tlir  (iovcriiiiifiit  i»l'  I5:a/il,\vaN  ri's])(insil)lc  lor  I  he  dainajio  ^^•lllH(Ml 
t)V.tln>  loss  of  till-  <'aiia(la,  anil  in  liis  award  saiil:  "Crrtiiin  cxiicnsrs  inciirriMl  tor  tlio 
iiiuintonance  and  passa^i-  lionic  ol"  tlic  crt-w,  as  also  three  months'  wa^jes  to  eaeh  of  t.lu> 
crew,  heinji  tlie  anioiiiit  wliieh  all  owners  ol'  vessels  of  the  I'nited  Stales  are  hound  to 
|),■^y  to  seamen  disehar;;ed  aliroail,  tin-  ninleisiiine:!  considers  to  he  justly  due;"  and  in 
hJMiward  allosved  tor  tliese  iti'nis.e^tiniatin;;;  the  waj^es  td"  the  mate  at  sl()i»  per  month, 
tlic  wall's  ot'  the  sceoml  niali'  at  *T.^  per  month,  the  \va;j;es  of  tlie  third  mate  at  .'jiliO  ])er 


nioiith 


tin 


a^jes  of  the   fourth  male   at   .«;.">(>  per  month,  llie  \vaH;t's  of  the  four  Iniat,- 


at  •'?iln  ]>er  month,  tin-  wajfe-  of  four  other  hoatswains  at  s;ti)  jier  month,  and  tiio 


wall's  " 


f  fourteen  nu'ii,  si 
itl 


lilor- 


Ae 


llic'fiiree  months' wa^es,  and  for  iheexpe 


at  Sl'-i  I'er  month,  thus  awarding;  os'er  >l!,Oi)()  for 


honn-  of  the  olheers  and  crew. 


We  do  not  lies. 


an,\  way  to  he  uudei'stood  a^  restricting^  the  damay;es  which  they 


(■laini  in  hehalf  of  the  olticeis  and  crews  of  the  vessels  destroyed  Ity  the  Alahama  anil 
other  (misers,  either  to  the  limits  of  len;;th  of  time  or  of  wa;;es  per  month  as  yivoii 
liv  Sir  Edward  Thointon.     lint  we  lia\ f  rid'ei  red  to  his  o|iinioii  principally  as  evidenco 

III 

:>ll( 


at  such  claims  are  "justly  due."  !t  will  he  t'oi'  thi>  Triliunal.  takinu;  into  its  considor- 
i!i  the  dist.iiil   places  in    winch    many  of   the   vessels  of   the   I'nited  States 


WlUfl 

lumed,  to  delirmine  what  reasDiiiihlts  ostiinatCH  shall  he  inaih;  of  the  ilamajjes  caused 
to  the  iilhcers  ami  sailots. 

The  Counsel  desii  >  here  U/  call  the  attention  of  tlie  'I'rihunal  to  tlm  revised  List  of 
Claims  wliich  was  liled  with  the  (Jounler  Case  cd"  the  I'liiled  States,  from  an  exaiiiiiia- 
tinii  of  which  it  will  api)ear  that  the  aTUount  of  the  claims  tiled  for  injuries  from  tli« 
cHittUics  made  hy  the  several  (Tuisers  has  heen  consideral)ly  increase.il,  and  that  tlni 
iiiiii  of  such  claim.s  without  iiitere,.s(  was  ^l'.*,":!'.',!'''''"'' 


h. 


-■""■M 


TI. 


AlMilMKNi    OK    SlMMAJtV 

sii(»\viN(.  TiiK  ,'o!Nrs  AM)  i;i;k!:i:i;i N' I  m  iiii: 

KVIDKNCK  KKMKI)  IIMiN 

ii\   liii; 

fiOVERNMENT  (iF  HER  RlilTANXIC  MAJESTY 


IN    AN>VVI,.l   T(i    IMli 


(■[.AIMS  Ol-   'IMIK  rMTKI)  S'lA'IKS; 


I'RF.SESTI  l>    10    rilK 


TRIBUxNAL    OF    ARBITRATION 

lON.STIlL  ll;i) 

I'NDEll  ARTICLK  I  OF  TIIK  TREATY'  (ONCU'DHD  AT  AVASII- 

lN(ir()N  OX  TI[H  srir  MAY,  1-^Tl.  nKTWHKX  IIHIJ 

J5K1TANMC  MAJESTY'  ANIJ  THE  IMTED 

STATES  OF  AMERICA. 


17   C 


A  11  (1  U  M  E  N  T . 


llor  r»ritiiniii(*  Miijcvst.v's  (ioveniiiu'iit  now  presents  to  the  Tiibuiial  of 
Ail)itralioii,  iiiider  tlie  tit'tli  artiele  of  tin*  Treaty  of  \\'asliiii;;toM,  a  siiiii- 
lUiiry  of  tlu'  (thief  points  on  whicli  (!reat  llritain  relies  in  arj;nment,  in 
answer  to  the  claims  of  the  Tnited  States.  This  snnunaiy  will  prin- 
cipally consist  in  a  recajiitulation  of  the  more  mateiial  lacts  and  con- 
sitlerations  already  i)laced  hefore  the  Arl»it:a(ors  in  the(  as<'  and  Connter 
Case  of  (Ireat  JJritain. 

Jt  will  be  <d)vious  that  Her  .Majesty's  CJovernment,  havinji"  cast  upon 
it  the  dnty  of  di'lenst-  aj;ainst  these  claims,  can  (»nly  meet  the  ar<;nments 
(III  the  part  of  the  I'nited  States  as  they  are  fiom  time  to  time  hron^iht 
Inrward.  Those  ai<;uinents  winch  were  bronjiht  forward  in  the  original 
Case  of  the  Tnited  States  it  has  endeavored  t(>  answer  fnlly  and  <'.\- 
plic'itly  in  the  Uritish  ("oimtei' Case,  to  which  it  now  desiies  to  refer. 
The  arf;nments  of  that  Counter  Case,  ami  the  statements  of  facts  and 
evidence  etnitained  in  it,  and  in  the  orij-inal  Case  of  (Ireat  llritain.  and 
the  A|>|»endices  to  both  those  Cases,  are  ni'cessarily  the  arjiumenls  and 
the  evidence  on  whicli  the  Covernment  of  (Ireat  Uritain  now  relies;  and 
i'.il  that  it  is  possible,  at  i>resent,  usefully  to  do,  is  to  sum  up.  in  a  con- 
densed form,  the  <:;eneral  sulistance  and  results  of  those  arj^uments  ami 
tvideiu'c,  with  sonu'  additional  remarks  made  necessary  l>y  lU'W  nuitter 
lontained  in  the  Counter  Case  of  the  I'nited  States  (itself  a  brief  docu- 
ment, enterinj;  into  few  or  no  details  of  arjiuineut)  and  the  Appendices 
thereto,  or  arising  out  of  the  evidence  oii;;inaliy  put  in  by  the  Inited 
States. 

Her  Majesty's  (iovernment  infers  from  tlicCoun'u'rCase  of  the  I'nited 
States,  that  it  is  the  intention  of  tlu-  (lovernment  of  the  I'inted  States 
to  enter,  at  the  iiresent  stage  of  the  proceedings,  at  sonu*  h'ligth  into 
controversial  aiguments,  in  whit  h  it  may  jcjssibly  take  occasion  to  offer 
such  replies  as  may  seem  to  it  pi'oper  to  the  (\uinter  Case  (»f  IJer 
Majesty's  (lovernment.  Should  this  pro\e  to  be  the  tact,  Her  Majesty's 
(iovernment  f'dly  relies  upon  the  justice  of  the  ArltitrattuN,  who  will 
(lonbtless  avail  themselves  «»f  the  oppovtuiuty  ot  calling  for  further 
statemeids  or  arguments  upon  any  i>oints,  either  of  law  or  of  fact,  which 
may  not  have  been  ade(iuately  dealt  with  l>y  anticipation  on  the  part  of 
Her  Majesty's  (lovernment. 

1.  The  (piestio'is  which  the  Tril»unal  of  Arliitration  is  called  upon  to 
ilccide,  relate  to  certain  claims  whicli  the  I'uited  States  c(m-  ^,„,„„,  „„,  ^„„. 
•rive  themselves  to  lia\f  against  < Ireat  Uiitain,  (ounded  on  '"'""• 
limunstances  wliit-h  occurred  during  the  late  civil  war  in  the  United 
States.  These  claims  are  defined  in  the  Treaty  of  Washington,  Sth  May, 
1871,  as  having  arisen  out  of  the  acts  of  certain  cssels  w  liich  are  re- 
ti'ired  to,  but  not  designated  by  name,  in  the  Treaty :  and  the  claims 
are  further  delincd  by  a  geiu'rie  or  class  description,  which  had  bj'eii 
iipim  oriated  to  them,  ami  under  which  they  had  become  known  to  the 
two  (icvernments,  before  the  date  of  the  Treaty. 

-.  The  course  of  iu-ocee<ling  to  be  followed  by  the  Tribunal  is  iioiuted 
out  by  thcTreatv.     The  Tribunal  is  to  <letermine,  as  to  each 

svpanttt't!/,  whether  (Jreat  llritaiu  has  by  any  act  or  ...« i.. i.m„ii..«,-u uy 

omission  failed  to  fultill  any  of  the  duties  set  forth  in  three 


i 


i> 


2(H) 


IHUTISII    AROI'MKNT, 


"IkUh's,"  laid  down  for  this  ])Mrposo  in  tlic  Tivaty,  (Arlirh'  W.)  or  itco;»;. 
iii/«>tl  b.v  till'  priiM'iph's  of  international  law  not  niconsistcnt  witii  sncli 
IJult's,  and  to  rcrtily  sncli  fact  as  to  oa<;li  of  tin'  said  v«>ss('ls.  This  is  the 
first  duty  of  flu*  Ail»iti'ators.  Tlicir  sccoinl  duty  (wldcli  will  arise  only 
in  case  tlicy  lind  tliat<ireat  iSritain  "has  failc '.  to  fnllill  aii,\(liity  or 
duties  as  aforesaid")  is  coidined  to  a<liudicatin;,^  either  liy  the  awaid  ot 
a  jjioss  sum  (»r  l»y  <letcnMinJii,u  tin*  extent  of  liability,  on  tlie  i»ecii;iiary 
reparation,  if  any.  which  in  (hat  e\t'nt  should,  in  their  ,iiid,'^nient,  he 
jnadt^  to  the  I'nited  Slates  by  (Jreat  iSritain.  It  follows  that  any  alleged 
tailure  of  duty,  which  should  not  consist  in  an  act  or  (Uiussion  as  to  one 
or  nn»reof  the  particulai'  ncsscIs  iiulicated,  w.nihl  iH>t  be  within  the 
eooni/ance  of  the  Arbitrators.  (Ireat  llritain  recalls  attention  to  this. 
not  because  she  has  any  doubt  of  her  ability  to  ;:ive  a  conclusive 
answer  to  any  char.i;('  what<-ver  that  nd;iht  be  hrou.uht  against  hci.  of 
liavini,'',  in  any  way  or  in  any  particular,  inipeilccily  di.char.m'd  hei 
international  duties,  but  because  it  is  on  all  accounts  rijiht  and  neces- 
sary that  tlu'  limits  of  a  i-cferem-e  to  Aibitration.  jointly  agreed  to  l»y 
tlu' j»arties  in  dilferenc*'.  and  end»odi(,'d  in  a  solemn  Treaty,  should  he 
stiictly  observed. 

.">.  The  \fssels  as  to  which  land  as  to  which  alone)  the  I'liitt^d  States 

^     are  at  lilM'rty  to  pro\e.  if  ihey  can.  a  failuie  of  duty  ajuaiiist 

" (Ireat  Jlritain,  are  referred  to  in  the  Treaty  as  "the  several 


I   IiM.'il  .<t:iti'«  ri-l;ll-. 


Acsscls   which    have  ;;iven   rise   to   the  claims    j;(Mierical 


known  as  the  'Alabama  claim> 


The  only  vessels  in  resix'ct  of  which 


any  claims  had  been  nmde  by  tin;  (lovernnn'nt  of  the  Uniti'tl  States 
n]»on  (Ireat  liritain  from  the  c(»mmencement  of  the  ci\il  war  uj)  to  tlic 
tinu'of  thecoiu'lnsion  ot' the  Treaty,  were  the  Floiida,  Alabanm.  (leoryiji. 
and  Shenan<loah:  and  these  claims  Innl,  in  the  correspondence  whidi 
passed  between  the  two  (lovernments,  become  •i'enerically  know  ii  as  tlu' 
"Alabama  claims;"  a  phrase  nmleistood  by  (Jreat  IJritain  to  mean 
claims,  on  at'connt  not  only  of  the  Alabama  herself,  but  of  other  vessels 
respectinj;'  which  com]»laints  had  been  made  of  a  like  character,  and  on 
like  ;j:rounds,  to  those  nnule  respectini;  the  .Vlabanui.' 

4.  The  Uidted  States  have  specilicd  in  tln'ir  Case  "  tlu'  cruisers,  for 
whose  acts"  they  "ask  the  Tiibnnal  to  hold  (ireat  Uritain  responsiltlc." 
The  list  incluiles, beside  the  Florida,  AIabanm,(leorj;ia.aml  Shen.'indoaii. 
certain  snndl  vessels  alleged  to  have  been  armed  and  employed  as 
tendeis  of  the  Kloriihi  and  Alabama,  ami  also  live  other  vessels,  in  re- 
spect of  muuiof  which  any  claim  had  previously  been  nnule  against  (Irent 
r>ritain.  ami  of  w  Inch  three  were  never  obtained  l!()m,much  lesse(inii)poil 
witl'.in,  the  (h)minions  of  ]Ier  Majesty;  whilst  the  rennnninj;"  two 
were  imilt  ami  sold  as  vessels  of  conunerce,  and  had  ceased  to  have 
any  connecti(Ui  with  (Ireat  Hiitain  before  they  were  adai)ted  or  used 
for  any  ]Hiri)oses  of  war.  (Ireat  IJritain  has  not  thou<>iit  proper  to  insist 
on  the  oltjection  that  the  additional  vessels,  in  respect  of  which  ne 
claims  had  jtrcviously  been  made,  ouyht,  on  that  account  alone,  to  ho 
reject<'d  liom  consideration  by  the  Tribunal,  as  not  fallinji'  within  the 
description  inserted  in  the  Treaty.  l)Ut  she  contends  that  it  is<MHitrary 
to  the  true  meanin;>'  of  the  'J'reaty  to  brinji"  forward  new  claims  in  respect 
of  any  vessels,  on  grounds  imt  fallinji"  Avithin  any  of  the  three  Itules  in 
Aiticle  \l.  m)r  within  tln^  ])rinciple  of  any  claim  whicdi  had  been  pre 
viously  nnule;  and  she  insists  that  lo  award  in  respect  of  any  of  these 
vessels  ou<»ht  to  be  made  by  the  Arbitrators. 

5.  It  is  clear,  at  any  rate,  that  the  claims  of  the  I'Mited  States  nuist. 


IJiitish  Ci.si>.  II.  '.I. 


J5KITISII    AiailMKNT. 


2G1 


ill  this  Arbitration,  1m^  (loiifmed  to  thos»i  vessels  wliieli  ar<^  speeided  in 
tlii'ii' Case  as  "  tlie  cruisors  for  whose  a«'ts  the  Tniteil  Statt's  aslv  tht; 
Trihiiiial  to  hohl  (ii'eat  l>ritaiii  respoiisihie."  Nevertheless,  the  I'liited 
States  have  introduced  into  the  list  of  <'lainis,  appemU'd  to  tlu'ir  Cas<', 
claims  for  eaptui'es  nwide  by  two  Confederate  eiiiisers  (the  IJoston  and 
Sallie)  whieli  are  not  anionj;'  the  vessels  speeilied  in  the  Case  itself. 
Tliey  ha\'e  likewise  inserted  in  the  same  list  claims  for  expenses  said  to 
liii\e  been  incurred  in  rehition  to  th«' Chesapeake  and  it'appahannock, 
which  a;;ain  ai'e  not  anionj;"  the  s,»ecilied  vessels.  .  l-'nrther,  they  have, 
lit  tlu'  time  of  presenting;"  their  Ceunter  (,'ase,  a(Med  claims  for  c;iptures 
iiiaile  by  the  .lelV.  Davis,  the  ^  .  JI.  .loy,  ami  the  Music,  three  other 
Ceiifedt'rate  vessels,  lu'ither  speeilied  in  the  Case  annui;;  those  in  respect 
<if  which  reparatitni  was  claimed,  nor  even  so  mncli  as  mentioned  in  it.' 
Ir  must  l)e  added  that  the  Cnited  States  have  not  assi^iiied  any  ;^roiuid 
(ii  reason  Ibr  the  claims  which  ihey  make  (»n  account  of  the  vessels  not 
st»  spc<Mtied.  N()  liiilure  of  <liity  has  been  char<;cd  aj;ainst  (Iicat  iSrilain 
ia  ropect  of  any  of  tiiein.  Vet  the  I'nited  Siiites  elaim  Ibr  t-aptures 
iiiaile  by  them,  and  for  e\p.;:ses  said  to  have  been  incurred  in  tryiuu  to 
capline  them,  without  alle^tin;;',  in  support  of  the  claim,  anythiu;;'  which 
(beat  I'.ritain  can  answer.  And,  in  the  case  of  the  .lell.  Davis,  the  \'. 
11.  .loy,  and  the  ]\lusic,  the  claims  have  been  jiut  in  alter  the  expiration 
ul  tlie  jtcricMl  within  which  evich'uce  couhl  b«'  presented  t>.\  ( ireat  Ibitain. 

(1.  Her  Majesty's  (iovernmeiit  had  siipp(»sed,  and  ha<l  s(»  stated  in  its 
Counter  Case,  that  the  claims  present«'(l  in  the  Appendix  to  the  Case  of 
'tlie  Cnited  .States,  on  account  of  vessels  not  mentioned  in  the  Case 
itself,  had  been  introduce(l  by  inadvertence.'^  I5ui  the  snbs<'»pient  addi- 
tion ot  claims  for  captures  by  the  ,Ieff.  Davis,  the  \'.  ]l.  .biy.  and  tlie 
Music,  a{»pears  to  be  imionsistent  with  tiiis  sujiposition.  It  is  necessaiy, 
tlierefore,  for  Her  Majesty's  (loverninent  to  (leclare,  in  the  most  explicit 
maiiiu'r,  that  claims  in  respect  of  vessels  not  speeilied  in  the  Case;  of  the 
United  States,  ainon^'  those  ''for  wIiom'  acts  the  I'nited  States  ask  thci 
Tribunal  to  hold  (Ireat  Jbitain  resi>onsi||le,"  are  not,  in  the  view  of  Ilei- 
Majesty's  ( iovernment,  o[>en  to  arj^ument  or  discussion,  since  they  (  annot 
properly  be  taken  into  eonsideiation  by  the  Arbitrators  tor  any  puip(»se 
wiiatever. 

7.  In  connection  with  this  point  it  is  necessary  here  to  take  notice  of 
tlie  I'ollowinj;'  statement  introduced  into  the  Counter  Case  of  the  Cnited 
.Stat«'s: 

Hir  M.iji'st  \;"s  (i'tvcnmiciit  a>Miin"  tliiit  lli<'  ifcljiiiiiitioiis  ot' tlie  I'nitrd  Stairs  ;irc  to 
111'  ciiiiliiicU  to  claiiiis  ninwinj;'  out  of  tile  acts  of  tile  I'loriila,  t  lif  A I  alia  ma.  I  In-  (icinj^ia, 
iiiiil  tlir  Sliciiaiitliiali.  'I'lic  claims  j;ro\viii;i'  (nil  ni  the  acts  iiC  tlic  otlicr  vessels  iiaincil 
ill  tlic  .VmiTicaii  (.'asc  arc  rc^fardctl  liy  tlic  I'nitcil  States  as  also  cmliraccil  witliiii  the 
trims  (if  tlie  treaty.  Tliey  I'orm  pait  <if  the  claims  ;^eiierall_\  i<ii(i\vii  as  the  "Alaliama 
ilaiiiis."  Tliey  aic  eimmerated  in  the  fuiirtli  of  a  series  ot'  live  volmins,  iniiiled  by 
oiiliT  iif  the  Senate  of  the  I'nited  States,  which  arc-  part  of  the '•  dticnnients,  corre- 
siiiiMdciice.  and  evi<lence,"  snhmitted  with  the  Case  of  the  I'nited  States,  'these  vol- 
iiiiics,  when  thus  collected  and  printed,  were  entitled  "  Claims  ot'  the  I'nited  States 
a^'aiiist  (ireat  IJritain."  It  is  believed  that  under  that  title  they  were  in  the  library  of 
till'  Foreijiii  Ollice  at  liOndon  before  Her  Majesty's  ili;;h  (_'omniissioner.s  received  tlieir 
iiistnictions.  It  may  also  be  said,  without  impropriety,  tliat  under  tlje  same  title  tiny 
were  on  tliu  table  of  the  .Joint.  Ibf^h  Commission  diiriiii;  the  negotiations  which  iire- 
vitdud  the  conclusion  of  the  treaty.  The  United.  States,  therefore,  whih'  re-assert iiiij; 
their  (Muistructioii  of  the  lani^uage  of  the  Treaty  in  this  respect,  feel  that  they  liave  the 
■  is'il  to  ask  th(>  Arbitrators  to  assume  tlnit  Her  Majesty'.s  llieh  Commissioners  had 
iiotiet!  of,  and  actiuiesced  in,  tliat  coustniction.  ' 

'  See  lievised  List  of  Claims,  pp.  "ill*,  2\)0. 

-  British  Counter  Case,  p.  '2. 

■'  Counter  Case  of  the  United  States,  sec.  i,  par.  "J. 


I 


■i.  .'  /Pi 


1, 


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nRITlSM    AIJGIMKNT. 


In  \oI.  iv.  PI*.  1 1«)-17."»,  of  flic  AppciMlix  \a  \ho  ('asc  of  (lie  rnitcd 
States,  tin-  Arltitiiitors  will  tiiid  tin-  (luciiiiH'iit  inferred  (d  in  the  alunc 
])ara;;rapli.  It  jxirpoits  to  Im'  a  "list  of  Afiicriciiii  m'sscIs  <'a)itiir('(l  aii<i 
«U'sti(»,vnl  \}\  rt'lM'l  vessels  tlnritiu"  tlie  late  wai."  and  t<)  he  eoiiipilcd  in 
answer  \it  a  resolntion  of  tin*  House  of  Itepresentatixes,  re(|nestiii;f 
inlorniation  "relating  to  the  di-stiiietion  dniin;:  the  late  war,  i>y  rehcl 
\essels,  of  sneli  Anieiiean  xesscls  as  were  en;;a;«ed  in  trade  oi-  r.iiu 
jneree."  Tiiis  list  <'ontains  the  names  (d"  <'erlain  < 'onCederate  ship: — 
twenty-thiee  in  nnnd>er,  (not,  Iiowevei'.  inelndin;:  the  \'.  11.  Joy  and  tli.- 
Music,  whieh  are  now  tor  the  (irst  tinn'  mentioned) — with  tiie  eaptin•l^ 
made,  or  a!Ie;;ed  to  ha\e  heen  made;  by  them,  iespecti\ cly,  so  far  ;in 
infornnition  on  the  snitjeet  luid  been  re<*eivx'd  at  that  time  by  the  Di-- 
jtartment  of  State.  Of  tliese  twenty-three  ships,  ton i-  (the  Alal»aiii;i. 
Florida,  (leorj;ia.  and  Shenandoah)  are  described  as  havin*;  been  fnttil 
out  in  oi' h'om  Ibitish  )K»rts;  thret'  others  as  havin;;  b»>en  ten(h'rs  fj,  the 
Florida;  oic  as  ha\in>;  been  a  tender  to  the  Alabama  ;  twelve  ollifis 
(anM)ny;  which  are  the  l>oston,  <  hickamau^'a,  .FefV.  Davis,  NasliMJIc. 
Ivetribution,  Sallie.  Sumtei-,  and  Tallahassee)  as  liavin;;-  been  fitted  diit 
in  the  Confederate  States.  Three  (amon;i  which  is  the  Olnstee)  aiv 
i'litered  without  any  indication  of  the  place  of  eijuijunent.  It  is  low 
t^aid,  in  j'tVect.  that,  because  this  list,  which  purports  to  lie  a  return  of 
all  cai)tures  macb'  during  the  war  by  ronfederate  armed  sliii)s,  irhrtrso 
trvr  fitted  out  nml  umUr  iclintrrcr  <ininii.st(uicts,\\ns  subseipuMitly  Itouinl 
up,  with  a  multitiule  of  other  documents,  in  one  of  five  larye  voluiiio 
presented  to  the  Senate  of  the  United  States,  under  the  <;em'ral  tirl.' 
'•  Correspondence  concei  ninji'  ( 'laims  aj^ainst  <  Ireat  Hritain,"  the  Jbitish 
Ciovernment  must  be  deemed  to  have  had  notice  that  the  ITnited  Stait'> 
would  attemjit  to  charj^c  all  such  captures  aj-ainst  (ii«'at  Ibitain.  llt-i 
Majesty's  (ioxernnu'nt  will  merely  say  that  siu-h  an  intention  was  one 
wliich  it  would  m»t  have  deemed  itself  justified  in  siipposingon  the  pan 
of  the  Cuited  States,  unless  it  had  been  clearly  expressed.  Yet  it  a]' 
jM'ars  that  the  I'nited  States»have  actually  pioceeded  on  this  jjrinciplc 
in  prescutinj;  their  claims  to  the  Arbitralois;  althou;;h,  for  some  reasuii 
not  y«'t  explained,  they  have  hitheito  ai)stained  from  extending' those 
claims  to  every  ship  winch  the  juinciple  would  seem  to  imdude. 

S.  .\ttention  has  been  drawn  in  the  Counter  Case  of  the  I'nited 
States  (sec.  iii,  i>ar.  "J)  to  a  statement  made  in  the  IJritish  Case  that  "in 
and  soon  after  the  moiith  of  May,  ISO!,  a  number  of  armed  ships  wore 
fitted  out  and  sent  to  sea  from  jtoifs  in  the  (Confederate  States,''  ami  it 
is  observfMl  that,  if  it  I»e  intemh-d  "  to  load  the  Arbitrators  to  suppose 
that  tliere  was  any  insurji'ent  vessel  preyiny  on  tlio  commerce  of  ti)e 
Uinted  States  when  the  FUn'id.i  or  when  tiie  Alabanui  escaped  from 
Liverpool,  the  United  States  cannot  too  strongly  protest  that  l[er  Maj- 
esty's CiOvernment  is  in  error  in  this  respe<.'t." 

The  follow  ing  are  the  dates  of  the  cruises  of  the  sever;..'  vessels  men 
tioned  iu  the  list  in  vol.  iv  of  the  Appen<lix  to  the  Case  of  the  United 
States,  omitting  the  Florida,  Alabanni,  (leorgia,  Shenandoah,  ami  their 
tenders:  Calhoun,  (fitted  out  at  New  Orleans,)  ]May,  18(11 ;  Savamian. 
(fitted out  at  Charleston,)  dune,  18«51  ;  Jeft".  Davis,  (fitted  outatChaiie> 
ton,)  June  to  August,  1801;  Winslow,  (fitted  out  at  Wilmington,)  -bil) 
to  August,  ISdl  ;  Sumter,  (fitted  out  at  Xew  Orleans,)  July,  ISOl.  t^ 
January,  ISOl*  ;  Vtuk,  (jilace  of  fitting  out  not  mentioned,)  August,  b'^il : 
Sallie,  (fitted  out  at  Charleston,)  October,  ISOl ;  St.  Nicholas,  (( aptiuvd 
by  the  C«)nf«'derates  in  Chesapeake  Jiay,)  June  an<l  July,  1801*;  Felm, 
(place  of  fitting  out  m)t  mentioned,)  July,  18(j2;  Ketribution,  (fitted  on' 
in  Cape  Fear  River,)  January  and  February,  1803;  Boston,  ([)lacoot 


BIUT1811    AK(ii;MHNT 


2()3 


rnitc.l 

lat  "in 

>s  wort' 

''  iuul  it 

suppose 

of    tl!f 

Ml  from 
ler  Mai- 
ls moil 
Uiiitoil 
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liipMilvtl 
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ittedo''', 
(place  of 


liltin,<;onl  not  mcntionoil,)  Juno,  1S0;>;  Tallahassoc,  (fittod  out  at  Wil- 
niin^jtoii,)  Au^iiiNt,  18(11;  Cliickaiuaujj^a,  (litt;Ml  out  at  "NVilinington,) 
Oi'tohcr,  1H()4;  Olustct',  (placo  of  fittinj;-  out  not  nuMitionod,  alleged  to 
lijivc  l)e»'n  ideiitiral  with  the  Tallahassee,)  November,  lS<)t. 

Tiie  Fhuida  lelt  Liverpool  on  the  L'L'd  Man^h,  IHOL',  and  was  detained 
i\(  Nassau  till  the  7th  August  following;  the  Alabama  h'ft  Liverpool  on 
llm  \l\H\i  duly  of  th^^  same  year.  Five  captures  are  recorded  in  tho 
jisf,  as  having  been  madt.'  in  the  interval  between  the  L'lid  March  anil  tho 
I'llth  didy,  l.Sdi',  l»y  tiie  vessels  Kcho  and  St.  >'i(:holas. 

It  may  be  added  that,  as  early  as  the  4th  June,  18tll,  lh>r  !\laje.sty\s 
Government  was  informed  by  tlie  IJiitish  i^linister  at  Washington  that 
•■till'  privateers  of  the  Confederate  States  were  at  that  niotuent  in  full 
activity,  and  had  met  with  considerabh'  success."' 

1>.  Tlie  argumtMit  to  be  ollered  on  the  part  (►f  (Ireat  Dritaiii  will  be 
>tri('tly  conlined,   in    tlu'  lir.st    instan*^,^,   to   the    questiini 
wlictlier,  as  to  anyone  or  more,  taken  one  by  one,  of  the  »  ./'.7  ...''ih-Vui 

vessels  speciiU'd  in  the  (^ise  of  the  United  States  as  "the  •""^•"" 

cMiisers  for  whose  acts  the  I'nited  Statesask  the  Tribunal  to  hold  Great 
Britain  responsibh'."  (Ireat  JJritain  did,  by  any  act  or  omissiiui,  fail  to 
lultill  any  tluty  set  forth  in  tlie  thret!  Itides,  or  recognized  l»y  the  princi- 
jiU's  of  international  law  not  inconsistent  with  those  Jvules.  This  is  the 
single  question  with  which  the  Arbitrators  have,  in  the  first  instance,  to 
(loal.  On  the  questions,  therefore,  whether,  in  regard  to  the  general 
trallic  in  munitions  of  war  or  in  other  articles,  between  ports  of  Great 
liritain  or  her  colonies  and  the  (Jonfederate  States,  or  in  regard  to  the 
jjoiieral  employ:.. ent  of  agents  of  the  Confederate  Government  for  tinan- 
cial  and  other  purp«>ses  in  England,  or  in  regard  to  the  general  partiality 
erroneously  alleged  to  have  been  shown  to  Confederate  \essels  in  JJrit- 
ish  and  colonial  ports,  the  British  Government  did,  or  did  not,  fail  in 
tlie  performance  of  any  of  its  neutral  obligations — on  these  questions, 
iiiul  such  as  these,  Great  JJritain,  while  reterring  the  arbitratcus  to  the 
.statements  as  to  both  law  and  fact,  contained  in  hor  Case  and  Counter 
Case,  and  the  Ai»i)endices  thereto,  forbears  to  otl'er  any  new  argument 
before  the  Tribunal.  She  has  fully  and  amply  vindicated  the  conduct  of 
lior  Govennuent  on  all  these  heads.  But  she  declines  to  treat  them  as 
jirosenting,  apart  from  the  questions  as  to  the  j^articular  cruisers,  legit- 
imate matter  for  argument  between  the  parties  to  the  reference,  or  ele- 
ments for  the  consideration  of  the  Tribunal. 

10.  As  regards  the  Sumter,  Nashville,  Tallahassee,  Chickamauga,  and 
Retribution,  Great  Britain  has  been  unable  to  discover  in 
the  Case  or  Counter  Case  of  the  United  States  any  reason- 
able or  intelligible  ground  for  making  the  acts  of  these  ves- 
sels, or  the  conduct  of  the  British  Ciroveniment  in  respect  of  them,  the 
I'ouiidation  of  claims  against  her.  It  will  be  suiUcient,  therefore,  to 
refer  the  Tribunal  to  Part  11  of  the  British  Case,  and  Parts  V  and  VIU 
of  the  British  Counter  Case,  in  which  the  facts  relating  to  these  vessels 
are  stated  and  commented  on.' 

1 1.  It  w  ill  be  seen — 

[a.)  That  in  the  case  of  the  Tallahassee  and  Chickamauga,  no  failure 
ol  duty  has  been  even  alleged,  much  less  proved,  against  (rreat  Britain. 
Tbf  sn  vessels  were  built,  indeed,  in  E'tghmd,  but  they  were  built,  .and 
WHie  i;.v  tl,  as  ships  of  commerce  ;  it  was  by  an  after-thought,  when  they 
w(  p  already  within  the  waters  of  the  Confederate  States,  and  had  be- 

'  Ai)|)«in'ix  to  Case  of  United  States,  vol.  i,  p.  Mi. 

'S(.f5  dsio  British  Connter  Case,  Part  IX,  pp.  107,  lOS,  a.s  to  the  Siiiuter  and  Nashville, 


,< 


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V  ;  1  .  .  .  r.lll  ltM(l!4M«., 
t'li  .  k'nn  i>;i(.i,  »  ii  n 
It.'lnliiii  III. 


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33  WEST  MAtN  STREET 

WEBSTER,  N.V.  14580 

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come  the  property  of  the  Confederate  Government,  that  they  were  armed 
for  war,  and  their  employment  as  ships  of  war  histed  but  a  few  weeks 
in  the  one  case,  and  but  a  few  days  in  the  other.  They  were  armed  in 
and  dispatched  from  a  Confederate  port,  (Wihuington,)  and  to  the  same 
Confederate  port  they  returned.^ 

(i.)  That  the  Sumter  and  I'^ashville  were  not  even  built  in  the  Queen's 
dominions;  and  in  respect  of  their  original  outfit,  nothing  is,  or  can  be, 
alleged  against  Her  Majesty's  Government.  Setting  aside  some  other 
minor  complaints,  which  will  not  bear  a  moment's  examination,  it  is 
suggested  only  that  tbey  received  in  British  ports  such  hospitalities  us 
were  extended  to  Confedei'ute  vessels  in  general  in  the  ports  of  neutral 
nations.^ 

(e.)  That,  in  the  case  of  the  lletributiou,  also  a  vessel  not  built  or 
fitted  out  in  the  Queen's  dominions, '  the  facts  alleged  show  nothing- 
more  than  that  her  commander  contrived  on  one  occasion,  by  tViuuiii- 
lently  personating  the  master  of  a  i»rize  captured  by  him,  and  conceal- 
ing the  fact  that  she  was  a  i)rize,  to  dispose  ol"  the  cargo  in  a  small 
island  of  the  JJahama  Archipelago,  remote  from  the  seat  of  government ; 
and  that,  on  anotlier  occasion,  by  means  of  a  fraudulent  conspiracy 
with  a  party  of  "  wreckers,''  he  managed  to  carry  a  prize  into  the  same 
place,  and  to  extort,  thiough  the  wreckers,  from  her  master  and  owners, 
a  ransom,  under  pretense  of  salvage.'  These  facts,  if  i)roved,  establish 
no  failure  of  duty  against  (ireat  Jlritain.'' 

111.  As  to  the  vessels  said  to  have  been  ein]»loyed  as  tenders  by  tlie 
Florida  and  Alabama,  no  failure  of  dutv  is  alleged  against 

ft 'relief    Tm  *.'  -^     o  ^ 

Ai.i,.,.  ,..'.>i  Great  Uritain.  The  only  question,  therefore,  which  can 
arise  in  coiineetion  with  them  is,  whether,  in  case  any  lial)il- 
ity  should  be  established  against  Great  r>ritain  in  respect  of  the  Florida 
or  Alabama,  such  liability  should  be  extended  to  the  acts  of  these  ves- 
sels. 

13.  The  discussion,  therefore,  in  the  view  of  Great  Britain,  confines 

itself  lu'acticaily,  as  well  as  of  right,  to  the  Alabama,  P'lor- 
i.in/'o.'.tt.;!','' Ti't.'i  ida,  Geoigia,  and  Shenandoah,  the  four  vessels  on  account 
of  which  claims  had  been  made  by  the  United  States  against 
Great  Britain  before  the  conclusion  of  the  Treaty  of  Washington. 

As  to  these  vessels,  the  material  charges  made  by  tbe 
United  States  appear  to  be  in  substance  as  follows: 
{a.)  That  the  British  (ioveriunent  did  not  exercise  due  care  to  i)revent 
them  from  being  e<juipped  or  specially  adai)te<l  within  British  territory 
for  war  against  the  United  States; 

{b.)  That  the  Jiritish  (iovernment  did  not  cause  them  to  be  arrested  or 
detained  when  they  subsequently  visited  ports  within  the  colonial  ]>o.s- 
sessions  of  Great  Britain ; 

(c.)  That  they  were  suffered,  in  such  ports,  to  obtain  supplies  ami 
effect  repairs,  of  a  nature,  or  to  an  extent,  inconsistent  with  the  obliga- 
tions of  Great  Britain  as  a  neutral  jwwer. 

14.  It  is  notin<!umbent  on  Great  Britain  to  prove  that  these  charges 
«are  erroneous.  It  is  for  the  United  States  to  prove  that  tliey  are  true. 
But  since  the  evidence  of  the  real  facts  applicable  to  each  of  these  ves- 

'  British  Counter  Case,  p.  10*^.  Appendix  to  British  Case,  vol.  v,  p.  143 ;  Aipeu'iix  to 
Case  of  the  United  States,  vol.  vi,  pp.  723-720,  72ti-7o0. 

'^  British  Case,  pp.  12-22.  British  Counter  Case,  pp.  67-71,  107-109.  Appendix  to 
British  Case,  vol.  ii,  pp.  1-H2,  87-l2'J. 

•'Case  of  the  United  States,  p.  390;  Appendix  to  Case  of  the  United  States,  vol.  vi, 
p.  73G. 

<  British  Counter  Case,  p.  104.     Appendix  to  British  Case,  vol.  v,  pp.  21-24,  lGr)-19*. 

'•  See  British  Counter  Case,  Part  X,  pp.  12<i,  127. 


Sl.i  ^lJ.IHf'  el  I  Large 


liJi 


BRITISH    ARGUMENT, 


265 


Pien'Tiit  principles 
<>|  intcnisitMHiil  law 
III  lone  wlieii  the 
I. It  1-*  (..ciirit'il. 


sels  is  before  the  Trilmnal,  Oreat  Britain  will  procee<l  to  state  the  prin- 
ciples w'c.ic.h,  in  her  view,  onf^ht  to  be  applied  to  these  facts. 

I'l.  Ill  view  of  the  arguments  which  have  been  employed  in  the  Case 
of  the  L^nited  States,  the  British  Government  will  refer,  in 
the  first  place,  to  tlie  general  principles  of  international 
law  which  were  in  force  at  the  time  when  the  facts  occnrred, 
setting  aside  for  the  moment  the  three  Itules  which  have  been  adopted  by 
(Ireat  Britain  and  the  United  States,  and  inserted  in  the  sixth  article 
of  the  Treaty  of  Washington. 

10.  The  general  i>rinciples  of  international  law  are  snch  only  as  have 
been  settled  by  the  general  consent  of  nations.  For  evidence  of  this 
ijeiieral  consent,  it  is  cnstomary  to  refer  to  the  works  of  text-writers  of 
iieknowledged  merit,  who  have  nuule  it  their  business  to  examine  the 
sources  from  which  snch  evidence  may  be  legitimately  drawn.  Opin- 
ions, however,  of  individual  i>nblicists.  Judicial  decisions  of  the  tribu- 
nals of  a  i>articular  country,  acts  of  any  one  State  or  (Jovernment,  can- 
not by  themselves  establish  a  rule  of  international  law;  they  can  only 
contribute  toward  the  formation  of  such  a  rule,  or  to  the  proof  of  its 
existence.  It  is  to  b(^  added  that  acts  of  a  State  or  (lovernment,  when 
used  for  this  latter  purpose,  ought  to  be  shown  to  have  proceede<l  from 
;i  sfiise  of  iuteruatituial  obligation,  and  not  from  motives  of  j)olicy  or 
iiitcriiatioTuil  comity.' 

17.  L'nder  the  general  principles  of  international  law,  a  broad  dis- 
tiuotion  is  drawn,  in  refeicnce  to  the(iuestiou  of  national  responsibility, 
iietweenthe  acts  of  a  sovereign  State  or  (Jovernment  and  those  of  indi- 
vidual citizens  or  subjects  of  the  State  or  (lovcrnment.  Ami  a  further 
{listiiK'tion  is  drawn  between  acts  of  individuals  which  the  (iovernmeiit 
is  under  an  obligation  to  prevent  so  far  as  it  is  able,  and  acts  as  to 
which  the  (lovernmcnt  owes  only  a  negative  duty,  the  duty  of  not  ])ro- 
tPCiing  the  persons  by  whom  they  are  done  froui  penal  conse<[uences, 
which  the  law  of  nations  attaches  to  them.'' 

18.  These  distinctions  rest  on  the  princii»le  that,  while  a  Government 
has  complete  control  o\er  its  own  acts,  and  may  therefore  with  justice 
he  held  completely  responsible  for  them,  the  control  which  it  can  exer- 
eise  over  the  acts  of  its  subjects  is  of  necessity  very  limited  and  innter- 
I'ect.  This  control  is  limited  on  all  sides  by  the  very  nature  of  civil 
government,  and  by  the  principle  of  individual  liberty;  by  considera- 
tions both  of  what  is  generally  practicable  and  of  what  is  generally 
expodient. 

111.  By  the  general  luiuciples  of  internatiomd  law  in  force  when  the 
facts  now  in  question  occurred,  a  neutral  (Jovernment  was  not  under  an 
')blij;ation  to  prevent  or  resti'ain  the  sale  within  its  territory,  to  a  bel- 
lijrereiit,  of  articles  contraband  of  war,  or  the  nmnufacture  within  its 
territory  of  such  artich's  to  the  order  of  a  belligerent,  or  the  delivery 
Thereof  within  its  territory  to  a  belligerent  purchaser,  or  the  ex[)orta- 
tion  of  such  articles  from  its  territory  for  sale  to,  or  for  the  use  of,  a 
helligerent." 

-0.  A  shii),  specially  adapted  for  warlike  use,  had  been  held  by  pub- 
lieists  ii!  general  to  belong  to  the  class  of  articles  which  are  contraband 
'jt  war.  The  citations  given  in  Annex  A  to  the  British  Counter  Case 
noiii  Hiibner,  Tetens,  (jaliani,  Ijamjuedi,  Azuni,  Ifutherforth,  Martens, 


M 


Vw  .wnonwnt  on  this  point,  see  British  Octnnter  Case,  pp.  G-11. 

See  Ilctitor  and  otlier  writfiB,  iiuotoil  iu  Annex   (A)   to  the  British   Counter  Case, 

d'l'.  14;>,  ('/  nv<].} 

See  British  Case,  p.  "^3  ;  and  tirecedeuts  qnoted  iu   British  Counter  Caa«',  pp.  49,  .^)0,. 

(note.) 


'    ( 


•""■n  ~t^'^ 


266 


BRITISH    ARGUMENT. 


tii-i'  itfi!'-''' 


Piantanida,  Story,  Wlieaton,  and  Hett'ter,  abiiiulantly  prove  lliis  po- 
sition. Neither  the  sending  of  such  a  vessel  from  a  nentral  to  a  bellijj. 
erent  conntry  for  sale  to  the  belligerent  Government,  nor  the  sale  of  It 
within  the  nentral  territory  to  a  belligerent  CJovernnient  or  its  agents, 
was  regarded  as  an  act  which,  by  the  general  princii)les  of  internatioiiiil 
law,  the  nentral  (Jovernnient  was  nnder  any  obligation  to  jtrevent. 
(Lampredi,  Azuni,  Story,  Wheaton.)  V>y  one  well-known  writer,  (M.  IJaii 
tefenille,)  it  had  even  been  contended  that  such  a  vessel,  if  not  sictiiiilly 
armed,  was  not  to  be  regarded  as  contraband  of  war,  but  was  anohJiMt 
of  legitimate  commerce,  whatever  might  be  her  force  and  whatever  the 
character  of  her  construction. 

21.  It  was  immaterial,  in  the  view  of  international  law,  whether  tiic 
vessel  were  sold  in  the  market,  when  completed,  to  the  belligerent  pur 
chaser,  without  anj-  contract  prior  to  her  completion,  or  were  built  to  the 
order  of  the  i)urchaser.  In  each  case  the  belligerent  purchaser  acfpiired 
an  imi)lement  of  war  by  means  of  a  commercial  transaction  witli  a 
private  i>erson  in  the  neutral  country,  and  the  adverse  belligerent  siis 
tained  in  the  one  case  no  injury  which  he  did  not  sustain  in  the  other, 

22.  If,  therefore,  the  facts  brought  to  the  knowledge  of  a  neutrnl 
Government  consisted  only  in  this,  that  a  vessel  specially  adapted  for 
warlike  use  had  been,  or  was  about  to  be,  acquired  within  the  neutral 
territory  by  a  belligerent  Government  or  its  agents,  or  that  such  adapta- 
tion Avas  in  progress  in  order  to  the  delivery  of  the  vessel  to  the  bellig 
erent  i)urchaser,  the  nentral  Government  was  not  bound  to  interfere. 

2'.].  The  general  principles  of  international  law  did,  on  the  other  hand, 
require  that  a  neutral  Government,  having  reasonable  ground  to  believe 
that  any  port  or  place  within  its  territory  was  being  u.sed,or  was  about 
to  be  used,  by  either  belligerent  as  a  base  or  point  of  departure  for  a 
military  or  naval  expedition  against  the  other,  should  exert  reasonable 
diligence  to  ju'event  this  abuse  of  neutral  soil.  Publicists  had  iu)t  at- 
tempted to  define  the  meaning  of  the  expressions  employed  above; 
they  iiad  commonly  had  recourse  to  simple  and  obvious  illustrations, 
such  as  the  assembling  of  an  armed  force  {'•'•  rassemhlemcnt  miUtaire") 
or  the  fitting  out  of  privateers  to  cruise  from  a  neutral  port,  {"  aumh 
tunfi  ran  Kapern,^^)  as  was  done  in  France  in  and  after  177(),  and  in  the 
United  States  in  and  after  1703.  The  circumstance  that  the  several 
constituent  parts  of  a  military  or  naval  expedition  (such  as  men,  arms, 
a  ship  or  shii)s)  had  been  sei)arately  procured  from  a  neutral  country, 
has  never  been  held  sufficient  to  convert  the  neutral  country  into  a  base 
or  point  of  departure  for  the  expedition.  In  the  celebrated  case  of  the 
Independencia,  which  came  (under  the  forensic  title  of  the  Santissima 
Trinidad)  before  the  great  American  Judge  Story,  the  ship,  which  had 
been  originally  built  and  equipped  at  Daltimore  as  a  privateer,  durins 
the  war  with  Great  Britain,  was  sold  after  the  peace  to  newowners,  wlm 
dispatched  her  from  that  port,  loaded  with  a  cargo  of  munitions  of  war. 
and  armed  with  twelve  guns,  (constituting  a  part  of  her  original  aruia 
ment,)  under  the  command  of  Captain  Chaytor,  an  American  citizen, 
on  a  voyage  ostensibly  to  the  northwest  coast,  but  in  reality  to  Buenos 
Ayres;  the  supercargo  being  instructed  to  sell  the  vessel  to  the  Govern 
ment  of  Buenos  Ayres,  (then  in  revolt  and  at  war  with  Spain, ^  if  he 
could  obtain  a  suitable  price.  At  Buenos  Ayres  the  vessel  was  sold  to 
Captain  Chaytor  himself  and  two  other  persons ;  and  soon  afterwards 
she  assumed  the  flag  aiul  character  of  a  public  ship,  and  was  understood 
by  the  crew  to  have  been  sold  to  the  Government  of  Buenos  Ayres. 
Captain  Chaytor  nmdo  known  these  facts  to  the  crew,  and  asserted  that 
he  had  become  a  citizen  of  Buenos  Ayres,  and  had  received  a  coiniuis 


BRITISH    ARGUMENT. 


267 


men,  anus, 


sioii  to  coinniaiid  the  vessel  as  a  national  ship;  he  invited  the  crew  to 
enlist  in  the  service,  and  the  greater  part  of  them  accordingly  enlisted  ; 
and  the  v'ihip  afterwards  crnised,  made  prizes,  and  was  recognized  in 
the  United  Htates  as  a  public  ship  of  war  of  liuenos  Ayres.  Tliis  whole 
transaction  was  held  lawful  in  the  Courts  of  the  L  nited  States;  while 
(•crtain  augmentations  of  the  force  of  this  vessel,  subseijuently  made 
ill  a  port  of  the  United  States,  were,  by  the  sanu^Uourts,  held  unlawful.' 
No  ]>ublicist,  again,  had  undertaken  to  determine  what  ought  to  be  held 
a  reasonable  measure  of  care  or  diligence,  nor  to  resolve  the  (jnestion 
what  groumis  of  belief — or,  in  other  words,  what  evidence — ought  to  be 
(letMned  suilicient  for  a  (Tovernment  to  act  upon. 

All  equipments,  which  by  tiieir  nature  were  applicable  iiuliflcrently 
to  purposes  of  war  or  commerce,  were  by  the  instructions  issmnl  by  the 
Government  of  the  Unitetl  States  in  1703  declared  to  be  lawful,  what- 
ever might  be  the  character  of  the  vessel,  or  her  actual  or  intended 
employment.'^ 

L*  1.  in  tho  first  of  the  three  Eules  laid  down  in  the  Treaty  of  Washing- 
ton the  duties  of  a  lUMitral  Government  are  defined,  with 
some  increase  of  strictness  as  well  as  of  i)recision.  Accord-  tiuiv.!,',T.,i'\'vT,i',' 
ing  to  this  rule,  a  neutral  Government  is  bound  to  use  due 
diligence  to  prevent  the  fitting  out,  arming,  or  equipping,  within  its 
jurisdiction,  of  any  vessel  which  it  has  reasonable  grouiuls  to  l>e]ieve  is 
intended  to  cruise  or  to  carry  on  war  against  a  power  with  which  it  is 
at  i)eace ;  and  also  to  use  like  diligence  to  prevent  the  departure  from 
its  jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war  as  above, 
Mieh  vessel  having  been  especially  adapted,  in  whole  or  in  part,  within 
sueli  jurisdiction,  to  warlike  use. 

li.").  The  reasonable  construction  of  this  rule  appears  to  recpiire  that 
the  intention  as  to  the  future  employment  of  the  vessel  should  be  au 
actual,  present,  fixed  intention,  not  contingent  on  the  happening  of  some 
uncertain  event ;  that  the  contemplated  employment  should  be  proxi- 
mate, not  remote ;  and  that  the  intention  should  exist  Jit  the  time  when 
the  alleged  obligation  to  interfere  arises — either  when  the  vessel  is  being 
fitted  out,  armed,  or  e<]uipped  in  the  neutral  port,  or  when,  after  receiv- 
ing there  her  special  adai>tation  for  war,  she  is  about  to  depart  from  the 
neutral  territory.  The  equipment,  the  departure,  which  the  neutral 
(lovorument  ought  to  use  due  diligence  to  prevent,  is  an  equipment,  a 
departure,  with  an  intention  that  the  vessel  shall  be  employed  iu  oper- 
ation.s  of  war,  and  with  a  view  to  her  employment  in  such  operations. 

I'G.  As  to  the  character  of  the  beHigerent  intention  wliich,  coupled 
with  the  act  of  equipment  or  special  adaptation  for  war,  makes  it,  ac- 
cortling  to  the  rule,  the  duty  of  the  neutral  Government  to  interfere — 
as  to  the  nature  or  the  grounds  of  the  belief  on  which  the  neutral  Gov- 
ernment ought  to  act — as  to  the  measure  of  diligence  or  care  which  it  is 
bound  to  exercise — as  to  these,  the  rules  introduce  no  new  principle, 
nor  do  they  augment  the  breadth  or  stringency  of  any  principle  previ- 
ously recognized.  It  was  never  supposed  that  a  neutral  (Jovernment 
was  or  could  be  bound,  under  any  circumstances,  to  prevent  the  fitting 
out  of  a  vessel,  unless  it  had  reasonable  grounds  to  believe  that  she 
was  intended  to  cruise  or  carry  on  war  against  a  power  with  which  the 
neutral  was  at  peace.  The  words  "  due  diligence,"  in  the  three  Kules, 
exact  from  the  neutral,  iu  the  discharge  of  the  duties  therein  stated, 
tliat  measure  of  care,  and  no  other,  which  is  re«iuired  by  the  ordiriary 


'  Appendix  to  British  Case,  vol.  iii,  pp.  85-90. 

'  British  Counter  Cane,  p.  •<J7.    Appendix  to  British  Case,  vol.  v,  pp.  269,  270. 


f«i 

iipp 

SJt  W  ^"^ 

1  ^■^■';MBt'''5 

'i 

if 


|;- 


268 


BRITISH    ARGUMENT. 


Mciininft    of      tlip 
witrdfi      "  rm^oriiitiN- 


'  n.it'  iIjIifi  i» 


principles  of  international  Jurisprudence,  and  the  absence  of  whidi 
constitutes  neyligen(!e.' 

27.  When  it  is  said  that  a  Governnu  iit  has  reasonable  {^rounds  to  be 
lieve  that  an  act  is  intended,  which  act  the  (.loveriiiiit'iit,  it 
it  possess  such  reasonable  grounds,  is  bound  to  endeavor  to 
]>revent,  and  can  prevent  oidy  by  the  enforcement  of  a  law, 

more  is  meant  than  that  the  Government  has  grcmnds  for  suspicion, 
founded  on  rumor  or  mere  circumstances  of  probability.  Su(!li  groiinds 
as  these  may  indeed  determine  a  G()vernment  to  undertaki;  voluntarilv 
the  resi)onsibility  and  risk  of  trying  to  enforce  the  law  ;  but  tlicy  can- 
not create  an  obligation.  This  can  only  arise  «hen  the  CJovernuient  lias 
ade<juate  grounds,  not  for  suspicion  only,  but  -'or  belief,  that  is,  for  siicii 
a  belief  as  is  sutticicnt  tojustil'y  it  in  setting  the  machinery  of  tlic  law 
in  motion. 

28.  Due  diligence  on  the  part  of  a  Government  signifies  that  nu  ismr 
of  care  which  the  Government  is  under  an  obligation  to  u.m' 
for  a  given  pui'[)ose.     This  measure,  where  it  has  not  bei'ii 

defined  by  international  usage  or  agreeiruMit,  must  be  deduced  fiom  the 
nature  of  the  obligation  itself,  and  from  those  considerations  of  justice. 
equity,  and  general  expediency  on  which  the  law  of  nations  is  founded. 

21).  AVhere  the  substance  of  the  obligation  con.sists  in  the  picveiition 
of  certain  acts  within  the  territory  of  a  neutral  jjowcr,  from  the  (■(tii- 
sequences  of  Avhich  loss  might  arise  to  foreign  States  or  their  citizens,!: 
Avould  not  be  reasonable  to  exact,  as  of  right,  from  the  Governuieiit,  .i 
measure  of  care  exceeding  that  which  Goveriunents  are  accustoinedto 
exert  m  matters  affe(;ting  their  own  security  or  that  of  their  own  citi 
/ens.  No  duty  whicli  nation  owes  to  nation  can  possibly  be  higher  oi 
more  imperative  than  that  whicli  every  State  owes  to  its  own  members, 
for  whose  welfare  it  exists,  and  to  whom  the  Government,  however  eon 
stituted,  is  morally  and  primarily  responsible  for  the  right  exerei.se  oi 
its  x>owers.^  An  exti'act  from  the  able  Danish  Jurist,  Teteus,  beariiij,' on 
manifestly  Just  and  reasonable  ])rincii>le,  has  been  given  inanoteiir 
page  2;3  of  the  British  Counter  Case. 

.')().  An  observation  to  the  .same  etfect  as  the  foregoing  in  the  Caseot 
Great  Ihitain  has  been  excepted  to  in  the  Counter  Case  of  the  Ciiited 
States,  on  the  ground  that  "  it  set^  up  as  the  measure  of  care  a  standard 
which  fluctuates  with  each  succeeding  Gctvernment  in  the  circuit  eftln' 
globe.*    This  is  an  error.     Where  indi\iduals  are  in  (piestion,  tiie  only 
general  standarils  of  due  care  which  it  has  been  found  i)ossible  to  tVaun*. 
^ire  trained  with  reference  either  to  the  care  which  the  particular  indi- 
vidual, against  whom  lU'gligence  is  alleged,  is  accustomed  to  exert  in  li!> 
own  concerns,  or  to  the  care  which  men  in  general,  or  particular  dius.ys 
of  men,  are  accustomed  to  exert  in  their  own  concerns.    To  standards  ot 
this  kind,  with  various  moditications  and  under  different  forms  of  ex 
pression,  Jurists  and  Judicial  tribunals  lU  all  countries  have  coMuiiouly| 
had  recourse,  to  assist  them  to  a  decision  in  cases  of  alleged  negligeuci'. 
Where  the  acts  or  omissions  of  a  Government  are  iu  question,  it  iscfi  | 
tainly  not  unreasonable  that  the  general  standard  of  care,  so  far  as  any 
general  standard  is  possible,  should  be  drawn  from  the  ordinary  con- 1 
duct  of  Governments  in  matters  affecting  those  interests  which  tliey  are 
primarily  bound  to  protect.    The  objection  suggested  by  the  United 
States,  that  the  standard  is  a  fluctuating  one,  is  therefore  not  ouly 


■Ir'i 


'  British  Counter  Case,  p.  21. 

2  British  Case,  p.  24,  proposition  9. 

•'  British  Case,  p.  167.   Counter  Ciiso  of  the  United  States,  sec.  ii,  par.  3. 

■•  Britisli  Case,  p.  24,  proposition  10.   British  Countet  Case,  pp.  21,  22. 


BRITISH    ARGUMENT. 


2G9 


dToneous  in  itself,  but  might  with  0(iual  reason  be  ur^ed  .igainat  the 
principles  of  decision  coinmonly  applied  to  analo<>ons  cases  in  the  ad- 
ministration of  private  law.  Its  tendency,' if  admit tCd,  would  be  to 
iiitroibuM?  a  uiiversal  hypothesis  of  absolute  and  arbitrary  power,  as  the 
rale  of  Judgm'    ^  for  all  such  international  controversies. 

;jl.  (Ireat  Britain  has,  however,  submitted  to  the  arbitrators  that  the 
(luestion,  what  nieasure  of  care  is  in  a  <iiven  case  sullicient  to  constitute 
due  (lilist'iictS  cannot  be  defined  with  precision  in  the  form  of  a  general 
rule,  hut  nnist  be  determined  on  a  carefid  consid«'ration  of  all  the  cir- 
cumstances of  the  yiven  case.'  In  the  Jlritish  Counter  Case  the  history 
iiml  experience  of  the  United  Stat^^s  themselves,  during'  the  war  between 
(Ireat  Ibitain  and  France  at  the  dose  of  the  last  century,  (luriuff  the 
wars  hetween  Spain  and  Portugal  and  their  revolted  colonies,  and  still 
more  recently  in  the  cases  of  expeditions  and  hostile  movements  orf>an- 
i/.ed  \vitiiin  the  United  States  against  Mexico,  Cul>a.  and  (Jreat  Britain, 
lirts  been  largely  r<'ferred  to,  for  the  i)urpose  ol'  showing  what  has  here- 
tofore been  deemeil  sullicient  by  the  (lovernment  of  the  United  States 
ro satisfy  tlie  obligations  incumbent  ui>on  them  in  this  resi)ect  toward 
other  nations,  and  how  imperfect  a  measure  of  success  has  attended 
their  efforts  to  restrain  their  citizens  from  lawless  a.cts,  inconsistent 
with  those  obligations.-  The  statements  in  the  British  Counter  Case  on 
this  subject  will  be  found  to  be  corro!)orated  l>y  the  papers  appended  to 
the  Counter  Case  of  the  United  States.  Those  papers  show  the  various 
iiistrnotions  and  proclamations  issued  with  the  object  of  preventing  vio- 
hitions  of  the  American  law.  The  British  Counter  Case  shows  how,  for 
a  long  series  of  years,  and  also  very  recently,  those  instructions  and 
proclamations  have  been  suc(;essful]y  evaded.  ^Ir.  Seward,  in  his  dis- 
piUch  to  ]\Ir.  Adams,  dated  the  2d  March,  lS(i.'>,  thought  it  sullicient  to 
express  the  desire  and  exiiectation  of  the  President  that  Her  Majesty's 
(iovernment  would  "  take  the  necessary  measures  to  enforce  the  execu- 
tion of  the  law  as  faithfully  as  his  own  (lovernment  had  executed  the 
(•orresi)onding  statutes  of  the  United  States.'"'  This  is  a  test  of  due 
diligence,  by  which  Her  jMajesty's  Govern ment  might  safely  be  content 
to  have  its  conduct  tried.  It  does  not  believe  that  upon  any  candid 
mind  the  comparison  would  leave  an  im[)ression  to  the  disadvantage  of 
Great  Britain. 

32.  It  is  absolutely  necessary,  in  considering  charges  such  as  arc 
made  against  Great  Britain  by  the  United  States,  to  take 
into  account,  for  some  purposes,  the  laws  and  institutions  p.n>,""" 
of  the  nation  charged,  the  powers  with  which  its  (iovern- 
uieiit  is  invested,  and  its  ordinary  modes  of  administrative  and  judicial 
procedure.  These  are  among  the  circumstances  which  bear  on  the 
<|uestion  of  negligence,  and  they  have  a  most  material  bearing  on  it. 
Ill  all  civili/>e(l  countries,  the  Government  possesses  such  ])owers  only 
as  a,e  (conferred  on  it  expressly  or  taiMtly  by  law  :  the  modes  of  ascer- 
taining dis])uted  facts  are  regulated  bylaw;  through  these  i)owers 
the  Executive  acts,  aiul  to  these  methods  of  inquiry  it  is  bound  to  have 
legard.  To  exclude  these  from  consideration  in  questions  relating  to 
the  performance  of  international   duties,  would  at  once  render  such 

[duties  intolerable  and  their  performance  impossible. 

33,  These  considerations  in  no  way  aftect  the  principle  that  the  du- 
jties  of  neutrality  are  in  themselves  independent  of  municipal  law. 
jThose  duties  are  not  created  by  municipal  law;  they  cannot  be  abol- 
|i""hed  or  altered   by  it.     But  since,  in  the  discharge  of  international 

*  '  Britisli  Counter  Case,  pp.  22,  125.  -  Ibid.,  pp.  25-47. 

•' Api)eiulix  to  Case  of  the  Uiiitert  St.itos,  vol.  i,  p.  GUI). 


n  n  (I 
r.^  1)1" tin-  Kxei  11- 
III  (irt^iit  Ilrir.:tili. 


m 


-r^^. 

m 

< 

t^i 

M^ 

u 

!i; 


270 


BRITISH    ARGUMENT. 


duties,  every  nation  acts  tlirougli  its  Government,  and  each  Government 
is  confined  within  the  sphere  of  its  legal  powers,  the  local  law  an<l  local 
institutions  cannot  be  disregarded  Avhen  the  question  arises,  whether  in 
a  given  case  a  Government  had  suflicient  grounds  of  belief  to  proceed 
npon,  and  whether  it  acted  w  ith  proper  diligence. 

34.  It  Avas,  therefore,  material  to  show  what,  at  the  time  when  the 
{lets  comi)lained  of  l\y  the  United  States  are  alleged  to  have  been  done, 
was  the  stiite  of  British  law  in  relation  to  such  matters ;  what  powers 
the  Executive  Government  possessed;  in  what  modes  those  powers 
could  be  exercised;  and  what  were  the  general  rules  of  administrative 
and  judicial  procedure,  including  those  relating  to  the  Judicial  investi- 
gation of  facts  and  the  reception  of  evidence. 

35.  In  reference  to  this  part  of  the  question  the  following  propositions. 
already  laid  down  on  the  part  of  (Jreat  lUitain,  may  be  repeated  here: 

In  every  country  where  the  Executive  is  subject  to  the  laws,  forei;,'n 
States  have  a  right  to  exi)ect — 

[a.)  That  the  laws  bo  such  as  in  the  exercise  of  ordinary  foresislir 
might  reasonably  be  deemed  adequate  for  the  repression  of  all  acts 
which  the  Government  is  under  an  international  obligation  to  repress, 
when  properly  informed  of  them  ; 

{h.)  That,  so  lar  as  may  be  necessary  for  this  purpose,  t^ie  laws  be 
enforced  and  the  legal  powers  of  the  Government  exercised. 

But  foreign  States  have  not  a  right  to  require,  where  such  laws  exist, 
that  the  Executive  should  overstep  them  in  a  particular  case,  in  order 
to  prevent  harm  to  foreign  States  or  their  citizens  ;  nor  that,  in  order 
to  prevent  harm  to  foreign  States  or  their  citizens,  the  Executive  should 
act  against  the  persons  or  property  of  individuals,  unless  upon  evidence 
which  would  Justify  it  in  so  acting  if  the  interests  to  be  protected  were 
its  own  or  those  of  its  own  citizens.  Nor  are  the  laws  or  the  mode  ot 
judicial  or  administrative  procedure  which  exist  in  one  country  to  be 
applied  as  constituting  a  rule  or  standard  of  comi)arison  for  any  otliei' 
country.  Thus,  the  rules  which  exist  in  (rreat  Britain  as  to  the  admis- 
sion and  probative  force  of  various  kinds  of  testimony,  the  evidence 
necessary  to  be  produced  in  certain  cases,  the  questions  proper  lo  be 
tried  by  a  jury,  the  functions  of  the  Executive  in  regard  to  the  preven- 
tion and  prosecution  of  oftenses,  may  ditftu',  as  the  organization  of  tlio 
magistrature  and  the  distribution  of  authority  among  central  and  local 
ofticers  also  ditt'er,  from  those  which  exist  in  France,  Germany,  or  Italy, 
Each  of  these  countries  has  a  right,  as  well  in  matters  which  concern 
foreign  States  or  their  citizens  as  in  other  matters,  to  administer  and 
enforce  its  own  laws  in  its  own  forum,  and  according  to  its  own  rules 
and  modes  of  procedure;  and  foreign  States  cannot  Justly  complain  of 
this,  unless  it  can  be  clearly  shown  that  these  rules  and  modes  of  pro- 
cedure conflict  in  any  particular  with  natural  Justice,  or,  in  other  words. 
with  principles  commonly  acknowledged  by  civilized  nations  to  be  ot 
universal  obligation.' 

3G.  It  has  been  shown  that  the  law  of  Gi^eat  Britain,  as  it  existed  at  the 
time  of  the  civil  war  in  the  United  States,  was  such  as,  in  the  exercise 
of  ordinary  foresight,  might  reasonably  be  deemed  adequate  for  enabliug 
the  British  Crovernment  to  perform  its  obligations  as  a  neutral  Govern- 
ment. It  was  modeled  upon  the  law  of  the  United  States,  which  had 
long  existed  and  had  frequently  been  brought  under  consideration  in 
the  courts  of  that  country ;  it  equaled  that  law  and  even  surpassed  it  in 
stringency ;  and  offenses  against  it  (if  any  there  were)  had  been  so  rare 

-#- 

'  British  Case,  pp.  24,  25  ;  see  also  Britisli  Counter  Ca.se,  pp.  72,  73. 


BRITISn   ARGUMENT. 


271 


[I 


as  to  luive  left  lianlly  any  trace  in  the  judicial  records  of  Great  Britain.^ 
Compared  with  the  laws  of  other  countries,  which  have  been  collected 
and  placed  before  the  Arbitrators,  it  will  appear  to  have  been  (as  it 
really  was)  sinj^ularly  stringent  in  its  prohibitions,  and  copious  and 
particular  in  detail.  J  Jut  the  question  is  not  whether  it  was  stricter  or  less 
strict  than  the  laws  of  other  countries,  but  whether  it  was  such  as  might 
reasonably  be  deemed  sufHcient  in  the  exercise  of  ordinary  foresight. 
It  is  impossible  to  denj'  that  it  was  such. 

;{?.  It  appears  to  be  suggested,  on  the  part  of  the  United  States,  that 
some  defect  or  defects,  which  might  not  have  been  foreseen,  in  the  law 
of  (Jreat  Britain,  was  or  were  brought  to  light  by  the  case  of  the  Ala- 
bama, and  that  the  law  ought  to  have  been  amended  in  consequence  of 
Ibis  discovery.  The  answer  to  this  is  that,  as  respects  the  Alabama 
herself,  the  question  of  the  liability  of  (Ireat  Britain,  on  account  of  her 
departure  from  this  country,  must  be  tried  on  the  facts  as  they  existetl 
at  that  time,  and  not  ujion  any  subsequent  state  of  facts.  In  respect  of 
the  Alabama,  (heat  Britain  must  be  held  to  bo  liable  (if  at  all)  on  the 
i;round  that  her  Government  failed  to  prevent  the  departure  of  the 
Alabama,  .and  not  on  the  allegation  that  she  did  not  afterward  amend 
her  law,  and  thus  failed  to  arrest  the  Georgia  or  the  Shenandoah.  But, 
further,  it  has  been  already  shown  that  the  departure  of  those  two  ves- 
sels was  in  no  respect  due  to  any  deficiency  in  the  law.  It  is  not  oidy 
true  that  the  law  of  Great  Britain  was  then  more  stringent  than  that 
which  existed  at  the  time  in  the  United  State's,  and  has  ever  since  been, 
and  now  is,  deemed  sullicient  in  that  country,  and  which,  a  year  after 
the  departure  of  the  Alabama,  (July  11,  18G.'>,)  w^as  spoken  of  by  Mr. 
Seward  as  "exactly  similar  to  tluit  of  Great  Britain;''-  but  it  is  alst> 
clear  that,  if  the  law  of  Great  Britain  had,  in  truth,  been  an  exact  coi)y 
of  that  of  the  United  States,  and  had  been  interpreted  and  enforced  in 
precisely  the  same  way,  no  facts  ex.ited — much  less  were  known  to  the 
British  (rovernnient — which  would  have  warranted  the  arrest  of  either 
of  these  latter  vessels  for  a  breach  of  that  law. 


'  British  Case,  pp.  29,  30. " 

^Appcudi.x.  to  Case  of  the  ITiiitecl  States,  vol.  i,  p.  G70. 

For  evidence  as  to  the  particulars  in  whieh  the  liritish  law  is  more  striiijjeut  than 
that  of  the  United  States,  see  tlie  opinion  of  Mr.  Beuiis,  (pioted  in  Annex  (15)  to  the 
British  Coiiuter  Case,  (p.  149.)  In  the  Counter  Case  of  the  United  States  (section  iii, 
par,  11)  the  attention  of  the  Arbitrators  is  called  to  a  dispatch  from  Sir  Frederick  IJruce, 
British  Minister  at  \Vashiuf5ton,as  furnishing;  evidence  of  the  superiority  of  the  United 
States'  statt  to  over  the  British  act.  But  the  dispatch  referred  to  nowhere  nientious 
the  British  Foreij^ii-Eulistnient  Act,  nor  does  it  attempt  to  nuike  any  comparison  between 
the  statutes  of  the  two  countries.  The  passage  (quoted  in  the  Counter  Case  of  the 
United  States  will  be  found,  when  taken  in  its  entirety,  to  refer  merely  to  the  advan- 
tages possessed  by  the  United  States  Government  in  proceeding  af;;ainst  irsHcls,  as  con- 
trasted with  the  comparative  ditticulty  t>f  i)roceedings  under  the  same  law  directed 
aSiiinstj9e/so«s.  "I  may  remark,"  writes  Sir  F.  Bruce,  "that  the  Government  of  the 
L'uited  States  has  considerable  advantas^es  in  proceeding  against  vessels  under  the 
statute.  They  have,  on  the  spot  where  the  preparations  are  being  made,  the  district 
attoruey,  a  legal  officer  responsible  to  the  Government,  to  whom  the  duty  of  investiga- 
tion is  committed.  The  libel  is  in  the  nature  of  a  proceeding  in  admiralty  in  rem.  It 
is  decided  by  a  judge  conversant  with  international  and  maritime  law,  and  without 
the  intervention  of  a  jury.  The  failure  of  the  attempt  to  stop  or  punish  the  persons 
engaged  in  the  expeditions  against  Cuba,  and  the  suspension  of  the  proceedings  against 
the  men  who  tock  part  in  the  Fenian  raids  against  the  British  provinces,  in  spite  of 
the  clearest  evidence,  shows  the  ditWculty  of  enforcing  the  law  when  it  has  to  be  put 
iu  operation  in  personam,  and  when  it  is  dey»endent  on  the  verdict  of  a  jury."  (Appendix 
to  Case  of  the  United  States,  vol.  iv.  p.  18'J.  Appendix  to  British  Case,  vol.  iii.  Keport 
of  Neutrality  Laws  Commission,  p.  (>8.) 

lu  Aunex  (A)  at  the  end  of  this  summary  will  be  found  a  review  of  all  the  communi- 
cations which  passed  during  the  war  between  the  British  and  American  Governments 
with  reference  to  the  state  of  the  neutrality  law  of  Great  Britain. 


ite:*' 


272 


Burnsn  arcumknt. 


lifei: 


■j:  ■'■] 


38.  A};aiii,  to  tlio  allojiation  that,  on  a  particular  point — tlio  (piostion 
whether  ii  vessel  specially  adapted  by  construction  tor  bellijicrent  iiso, 
though  not  armed  so  as  to  be  inunediately  cai)able  of  liostiiities,  was 
within  the  prohibitions  of  the  Foreij;n-Enlistnient  Act — tlu'  i)rovisiuiisot' 
the  Act  were  ref|;'arded  as  of  doubtful  construction,  ami  that  in  one  oiisc 
(that  of  tlu>  Alexandra)  the  doubt  was  resolved  in  the  ne}>ative  by  a 
decision  of  a  Jbitish  Court,  the  ni(>mbers  of  which  were  equally  divided 
in  opinion  about  it,  the  answer  (if  any  answer  can  be  supposed  to  lie 
necessary)  is  equally  clear.  The  Act  itself  was,  on  this  point,  expressed 
in  more  strin<i;ent  lanyuaj^c  than  that  of  the  UnihMl  States;  the  le<;al 
advisers  of  the  Government,  and  the  (lovernment  itself  on  tlieii'  advice, 
«lid  not  act  on  the  laxer,  but  on  the  moie  severe,  construction  of  it;  the 
doubt  referred  to  was  never  Ju<licially  raised  till  .Tune,  180,'},  and  it  did 
not,  in  any  cas(^  which  afterwards  occurred,  operate  to  ]»revent  the  de- 
tention of  any  vessel  which  was  intendcil  to  be  employed  in  cruisin;;' (u 
making  war  against  the  United  States.  It  nniy  be  true  that  the  law 
admitted  of  two  ditloreiit  constructions  on  this  point  in  iMigland.  a-;  it 
certainly  did  in  the  United  States;  it  may  be  true  that  it  had,  belbie 
]80;>,  been  (to  some,  though  oidy  to  a  very  limited,  extent)  Judicially  in- 
terpreted in  the  United  States,  whilst  no  case  calling  i'or  a  jiulical  inter- 
pretation had  occurred  in  England;  but  it  is  clearly  impossible  to 
contend  that  it  must  for  that  reason  i)e  considered  to  have  bei'U,  bel'oie 
18(5o,  less  stringent  in  England  than  in  the  United  States,  or  to  aijiiie 
that  because  some  oflicers  of  a  ]>articular  Department  of  Go\  ernineiit 
(that  of  the  Customs)  honestly  understood  it  in  the  less  stringent  sense. 
this  fact  constituted  a  failure  of  international  duty  on  the  i)art  of  Great 
Britain. 

30.  It  is,  therefore,  abundantly  clear  that  no  argument  against  Great 
Britain  can  be  founded  on  any  supposed  defect  in  the  Foreign-P^nlistnieiit 
Act. 

40.  xis  to  the  general  powers  of  the  Executive  Government  in  Great 
Britain  and  the  rules  of  procedure  established  there,  the  following  state- 
ments have  been  made  on  her  part  to  the  Arbitrators. 

(rt.)  The  Executive  cannot  tleprive  any  person,  even  temporarily,  of 
the  possession  or  enjoyment  of  property,  nor  subject  hiui  to  bodily  re- 
straint, unless  by  virtue  and  in  exercise  of  a  power  created  and  con- 
ferred on  the  Executive  by  law. 

(&.)  Islo  person  can  be  visited  with  a  forfeiture  of  property,  uor  sub- 
jected to  any  penalty,  unless  for  breach  of  a  law,  nor  uuless  such  breaeli 
is  capable  of  being  proved  against  him. 

(c.)  Under  the  Foreign-Enlistment  Act  the  Government  had  nopoworto 
seize  or  detain  a  ship,  unless  Avith  a  view  to  subsequent  condemnation 
in  due  course  of  law,  and  on  the  ground  of  an  infringement  of  the  law 
sufficient  to  warrant  condeuumtion. 

{d.)  Before  authorizing  the  coiulemnation  of  a  suspected  vessel,  tbe 
law  required  that  the  facts  alleged  against  her  should  be  capable  of 
proof.  Open  investigation  before  a  Court  is  t!he  mode  appointed  bylaw 
for  sifting  all  allegations  and  distinguishing  ascertainable  facts  from 
mere  rumor.  This  is  an  ordeal  which  a  British  Government  must  always 
be  prei)ared  to  encounter  if,  in  the  exercise  of  the  powers  intrnstetl 
to  it,  it  seizes  or  interferes  with  the  person  or  i>roperty  of  any  one 
within  its  Jurisdiction.  The  British  Government,  therefore,  j ustly  held 
itself  eutit:led  and  bound,  before  seizing  any  vessel,  either  to  have  suffi- 
cient proof  in  its  possession  or  to  have  reasonable  grounds  for  believing 
that  it  would  be  forthcoming  before  the  trial  of  the  case  should  begin. 

(e.)  By  proof,  in  an  English  court  of  law,  is  understood  the  produc- 


mtlTISII    AKOrMKNT 


273 


rioii  of  evidtMici^  siiflicioiit  to  creat*^  in  the  mind  of  the  Judjjo  or  jury  (as 
the  case  may  be)  n  reasonable  and  deliberal,^  belief  of  the  trnth  of  the 
tact  to  be  i)roved,  such  as  a  reasonable  ])ei'son  would  be  satistied  to  act 
ou  ill  any  important  concerns  of  his  own.  And  by  evidence  is  under- 
stood the  testimony,  on  oath,  as  to  facts  within  his  or  their  personal 
knowledge,  of  a  witness  or  witnesses  jn'oduccd  in  open  court  and  subject 
to  cross-examination.' 

U.  It  may  well  be  true,  and  doubtless  is  so,  that  these  rnles  of  i)ro- 
cediue,  administrative  and  judicial,  differ,  more  or  less,  frtmi  those  which 
t'xist  in  some  other  countries;  that  the  jmwers  lodjjfed  in  the  (Jovern- 
meiit  in  some  of  those  countries  are  Ijirger  than  in  Great  Britain ;  that 
an  authority  may  exist  elsewh(»re,  whicli  in  Great  Jiritain  was  al)sent, 
to  act  on  mere  suspicion ;  that  the  principles  applied  to  the  admission 
and  the  credibility  of  evidence  may  not  be  the  same.  ]»ut  it  is  plainly 
impossible  to  contend  that  the  rules  established  in  Great  Dritain  were 
in  any  respect  contrary  to  natural  justice  or  in  contlict  with  any  princi- 
ples of  public  law  generally  recoyni/ed  by  civilized  States,  or  so  restrict- 
ive of  the  powers  of  Government  as  to  disqualify  it  from  the  discharjje 
i)f  ordinary  international  diities.  Their  "general  jMinciides  do  not,  in 
tact,  differ  from  those  which  have  been  iidierited  from  the  same  original 
sonrcos  by  the  United  States.  Those  i)rin('iples  are  esteemed  essential 
in  Groat  Britain  for  the  preservation  of  public;  and  private  liberty.  The 
I'ritish  Government  was  therefor«>  entitled  and  bound  to  observe  and 
acton  the  rules  founded  npon  them;  and  no  charge  of  negligence  can 
be  founded  on,  or  supporte<l  by,  the  fact  that  it  did  so  observe  and  act 
on  them  in  respect  of  any  of  the  vessels  to  which  the  claims  of  the  United 
States  relate.^ 

41i.  Taking  into  account  these  circumstances,  and  bearing  in  mind  the 
principles  of  the  decision  which  have  been  laid  down,  the 
Arbitrators  have  first  to  determine  whether,  in  failing  to  pre-  i..MM.'v.Vh'i'.>r'""H« 
vent  the  htting  out,  arming,  or  equipping,  within  Great  ..aunsi  dr-ut 
Britain,  or  the  departure  from  Great  liritaiu  after  a  special 
adaptation  for  war,  of  any  of  the  vessels  above  mentioned,  the  British 
(ioverninent  is,  or  is  not,  justly  chargeable  with  a  failure  of  duty  for 
which  (Jreat  Britain  owes  compensation  to  the  United  States. 

43.  Before  an  award  can  l)e  made  against  Great  Britain  in  respect  of 
any  vessel,  the  Arbitrators  have  to  b(i  satisfied — 

(a.)  That  she  was  in  fact  fitted  out,  arme<l,  equipped,  or  specially 
ndaptcd,  either  wholly  or  in  ])art,  to  warlike  use  within  J^ritish  ter- 
ritory; ^ _        _ 

'British  Case,  pp.  'M,  r»l.     Itritisb  Counter  Case,  ))i».  7:?,  HI, 

•TheCouuter  Case  of  tlie  United  States  eoutaius  (in  section  iii,i)ar.  ir))somp  observa- 
tions on  the  explanations,};!  vena  tpa<i;cr)7f)f  the  ISritish  Case,  of  tile  nieaninj; of  tlie  terms 
'iejristry"an(l  "clearance,"  and  of  the  duties  of  the  otticersof  tho(Ti)vernnient  charged 
■vitli  the  registration  and  clearance  of  vessels  in  British  jiorts.  The  United  States  invite 
tlieiittentionof  the  Tribunal  to  extracts  of  the  British  Merchant  Shipping  Act  of  1854, 
'•M  of  the  Customs  Consolidatiou^ct  of  185'.^,  as  conferring,  in  their  opinion,  more  oxtend- 
'ilpowcrs  upon  the  officers  of  the  British  Government  than  are  stated  in  the  British  Case. 
riie point  is  not  one  which  is  material  to  the  <iuestions  at  issue;  the  acts  in  ((uestion 
were  designed  exclusively  for  commercial  and  fiscal  purposes,  for  the  protection  of  the 
revenue  and  the  proper  regulation  of  British  shipping,  and  their  provisions  could  not 
')o  applied  to  the  prevention  of  attempted  or  apprehended  violations  of  neutrality,  for 
«liicli  the  necessary  powers  have  been  conferred  by  separate  legislation  in  the  Forcign- 
Knlistment  Act,  The  statement  made  in  the  British  (Jase  was,  however,  perfectly  cor- 
f'l't;  and  although,  for  the  reasous  above  mentioned.  Her  Majesty's  Government  tliinks 

i 't  unnecessary  to  enter  into  the  matter  in  detail,  it  will  be  ready,  should  the  Arbitra- 
tors so  desire,  to  furnish  a  statement  showing  wliat  has  been  the  uniform  practice  of 

hlio  branches  of  the  Administration  charged  with  the  execution  of  these  laws,  and 
proving  that  that  course  was  followed  in  the  case  of  »<ach  of  the  vessels  under  discus- 

I  *ioii, 

18  0 


ft 


I    ^ 


274 


BKITIHIi    AIUJIIMKNT. 


The  riorldn. 


(6.)  That  the  British  Government  had,  before  she  was  beyond  their 
niithority  and  jurisdiction,  reasonable  ground  to  believe  that  she  waH 
intended  to  cruise  or  carry  on  war  against  the  United  States: 

(c.)  And  also  that,  having  such  reasonable  ground  of  belief,  the  (rov 
eroment  did  not  use  due  diligence  to  prevent  her  equipment  as  afore- 
said, or  else  to  prevent  her  departure. 

44.  For  the  purpose  of  determining  these  questions,  the  Arbitrators 
have  to  place  themselves  in  the  situation  in  which  the  liritish  Govern 
ment  was  at  the  time,  and  not  to  impute  to  it  a  knowledge  of  facts  wbich 
it  did  not  then  actually  possess,  unless  iu  any  case  it  should  be  pruve<l 
to  the  satisfaction  of  the  Arbitrators  that  other  facts  must  have  been 
known  to  it,  bad  it  exerted  reasonable  care. 

45.  The  case  of  the  Florida  was  the  first  in  order  of  time.  No  attempt 
on  the  part  of  the  Confederate  Government  to  fit  out  or  pro- 
cure a  vessel  of  war  within  British  territory  had  up  to  that 

time  come  to  the  knowledge  of  the  British  Government,  or  had  in  fact 
been  made.  No  facts  were  known  to  the  British  Government  proving  or 
tending  to  prove  that  such  an  intention  existed. 

40.  The  material  facts  relative  to  this  vessel  are  stated  in  the  Caseol 
Great  Britain,  Part  V,  in  the  Counter  Case  of  Great  Britain,  Part  V!, 
and  iu  the  documentary  evidence  therein  respectively  referred  to. 

47.  As  to  her  original  departure  from  Great  Britain  and  the  circuni 
stances  which  preceded  it,  the  Arbitrators  have  seen — 

(a.)  That  the  first  communication  made  to  the  British  Government  on 
the  subject  was  received  on  the  19th  Februnry,  18G2,  three  months  after 
the  attention  of  the  United  States  Consul  at  Liver^yool  had  been  directed 
to  her,  and  at  a  time  when  she  wa3  ready  for  sea;* 

(6.)  That,  a  fortnight  before  the  date  of  this  communication,  it  was 
known  to  Mr.  Dudley  and  to  Mr.  Adams  that  she  was  taking  in  her  coal, 
and  appearances  then  indicated  that  she  was  about  to  sail  before  the 
end  of  that  week.  They  made,  however,  no  representation  to  the  Gov- 
ernment, which  might  have  led  the  Government  to  institute  inquiry;^ 

(c.)  That,  in  the  communication  made  on  the  19th  February,  no  proof 
whatever  was  furnished  of  the  intended  employment  or  true  ownersbip 
of  the  vessel,  and  no  circumstance  stated  which,  even  if  it  had  been 
verified,  could  have  produced  more  than  a  bare  suspicion  ; ' 

(flf.)  That,  vague  and  scanty  aH  were  the  allegations  iu  Mr.  A<lanis's 
letter,  inquiry  was  instantly  directed  by  the  Government.  No  inforiua 
tion,  however,  could  be  obtained  tending  to  connect  the  vessel  in  any 
way  with  the  Confederate  States.  She  was  declared  by  the  builder  to 
be  ordered  lor  a  firm  at  Palermo,  a  member  of  which,  being  a  native  of 
that  city,  was  registered,  on  his  own  declaration,  as  her  sole  owner,  ami 
had  frequently  visited  her  when  building.^  She  had  on  board  no  trooiis 
and  no  arms  or  niilitnry  supplies.  The  contrary  supposition,  entertaiiifd 
at  one  time  by  the  United  States,  was  founded  on  a  mere  misundeistami 
ing  of  blanks  in  a  printed  form  of  clearance/'  Her  first  destination,  iis 
stilted  hi  her  clearance,  Vias  Palermo;  an8  her  crew  were  noniinallv 
(smd,  as  they  evidently  believed,  really)  hired  for  a  mercantile  voyage.' 
On  the  one  hand  were  the  positive  statements  of  the  builder,  the  regis 

'  IJiitish  Cast),  p.  53;  British  Counter  Case,  pp.  74,  75;  Ai)pt!ndix  to  Case  ol'tlv 
United  StatoM,  vol.  vi,  p.  ;?rt;{. 

■-' JJritisli  Cast',  p.  ^)'.i;  Appendix  to  Case  of  the  United  States,  vol.  vi,  p.  215, 

^  Appen<lix  to  liritiMJi  Case,  vol.  i,  p.  1. 

■•Hritisli  Case,  pp.  54,55;  Appendix  to  British  Case,  vol.  i,  p.  10. 

•'  British  Case,  pp.  5(),  57  ;  British  (Counter  Case,  p.  75  ;  Appendix  to  British  Cas''.  \' 
i,  pp.  7,  8. 

«  British  Case,  pp.  58,  65 ;  Apptnidix  to  British  (.'ase,  vol.  i,  p.  IGl. 


'■::4/^v 


HKITIHII     \K(UJMKNT. 


275 


litisli  Cus'-.  ^"' 


tered  owiii^r,  and  tlio  cullector  of  cii8toin8  ;  on  tlio  utlior,  the  Huspicion 
of  Mr.  Dudley  that  th*^  vesHel  was  still  intended  by  her  owner  to  pass, 
Hooner  or  later,  into  the  hands  of  the  Confederate  GoverDmenc.  But 
ii suspicion  is  one  thinpr,  reasonable  ground  of  belief  another;  and  the 
British  Ooveniinent,  while  it  would  have  been  bound  to  act  on  a  reason- 
able belief  that  there  was  u  present  fixed  intention  to  employ  her  as  a 
C/oafederato  ship  of  war,  was  neither  bound  by  international  duty,  nor 
empowered  by  its  municipal  law,  to  tict  on  a  bare  suspicion  that  she 
might  pass  into  that  employment ; ' 

{e.)  That  the  results  of  this  inquiry  were  communicated  to  Mr.  Adams 
on  the  26th  February  ;^  that  more  than  three  weeks  elapsed  from  that 
time  till  the  sailing  of  the  ship ;  yet  that,  during  the  whole  of  that  time, 
no  further  communication  was  made  to  the  Government  by  the  Ameri- 
can Minister  or  Consul.  Either  they  had  no  information,  or,  having 
iuformation,  they  did  not  produs;e  it.  Ic  appears  from  the  contempora- 
neous correspondence  of  the  Government  of  the  United  States  with  their 
ageDts  at  Liverpool,  that  this  ship  was  in  reality  supposed  by  those 
agents  to  be  one  of  a  numerous  class  then  fitting  out  at  that  port,  of 
which  the  rest  proved  to  be  blockade-runners,  intended  and  used  .or 
commercial  and  not  for  warlike  purposea.-' 

48.  It  is  stated  in  the  Counter  Case  of  the  United  States  (sec.  v,  juir. 
5)  that  from  the  evidence  furnished  in  the  British  Case  and  App<%ndix, 
"it  appears  clearly  that  before  the  Florida  left  Liverpool,  tlv  British 
Government  received  iuformation  from  the  Government  of  II  ,  Majesty 
ihe  King  of  Italy,  that  the  pretense  that  the  Florida  was  constructed 
for  the  Italian  Governra  n'  Yas  a  fraud.''  This  is  an  error.  The  Florida 
(then  the  Oreto)  left  Liverpool  on  the  22d  of  March.*  At  that  time  the 
only  iuformation  i  '  ;eived  from  the  Italian  Government  was  that  con- 
veyed in  a  telegram  from  the  British  Minister  at  Turiti  of  the  1st  March, 
to  the  ett'ect  that  M.  Ricasoli  had  no  knowledge  whatever  of  the  ship 
Oreto,  but  would  cause  inquiry  to  be  made.°  The  later  annouacement 
by  M.  Katazzi  that  every  inquiry  had  been  made  and  that  the  Italian 
Government  knew  nothing  of  the  vessel,  was  not  made  to  the  British 
Minister  till  the  2oth  of  March,  three  days  after  the  Florida  had  sailed 
from  the  Mersey." 

49.  On  these  focts,  the  United  States  charge  Great  Britain  with  a 
failure  of  international  duty,  rendering  her  liable  to  make  compensation 
for  all  losses  subsequently  occasioned  by,  or  attributable  to,  the  Florida, 
after  she  had  been  convened  into  a  Confederate  ship  of  war.  The  con- 
verson  took  place  about  five  months  afterward ;  the  cruise,  in  the  course 
of  which  her  prizes  were  made,  commenced  from  a  Confederate  port, 
about  ten  months  afterwaml.  On  the  part  of  Great  Britain  it  is 
submitted  that  thit3  charge  is  without  foundation ;  that  it  finds  no  support 
in  any  just  or  reasonable  conception  of  iuternational  obligations  hitherto 
recognized  by  other  Powers ;  and  that,  were  it  to  be  sustained,  no  neu- 
tral State  could  be  secure. 

50.  As  to  the  subsequent*departnre  of  the  Florida  from  Nassau,  the 
Arbitrators  have  seen  that  this  vessel,  from  the  time  when  she  entered 
the  waters  of  the  Colony,  was  watched  by  the  local  authorities;'  that 

'  Ikitish  Counter  Case,  p.  75. 

"British  Cii8o,  p.  ri5;  Appendix  to  Britisli  Case,  vol.  i.  p.  3. 
•'Appendix  to  Case  of  tlie  United  States,  vol.  i,  pp.  529,  649. 
^Biitish  Case,  p.  5H  ;  Appendix  to  British  Case,  vol.  i,  p.  7. 
•'•Appendix  to  British  Case,  vol.  i,  p.  3. 


■  ^  » 


4H 


"Ibid,,  vol.  i, 


6. 


'British  Case,  pp.  61-63;  Appendix  to  ditto,  vol.  i,  pp.  12-23. 


•!! 


f^'"^""""^ 


276 


HRITISH   AR(  J I JM  KNT. 


she  was  finally  seized,  on  ii  charge  of  a  violation  of  the  Foreign -Enlist 
ment  Act;*  that  proceedings  were,  by  the  Governor's  direction,  instituted 
in  the  proper  court,  with  a  view  to  her  condemnation ;  and  that,  alter 
a  fair  and  regular  trial,  she  was  ultimately  released  by  a  judicial  sen 
teuce.'^    It  is  impossible,  therefore,  to  contend  tluit  the  departure  of  tiic 
Florida  from  Nassau  was  tiae  to  negligence  on  the  part  of  the  local  aii 
thorities  or  of  the  Government  of  (ireat  Britain;  on  the  contrary,  tlic 
authorities  did  what  they  could  to  prevent  it.    The  United  States  have 
attemi>ted  to  impute  to  the  chief  Law-Officer  of  the  Government  in  tbi 
Colony  unfaithfulness  to  his  superiors,  and  dishonesty  in  the  perforui 
ance  of  his  official  duty.    Personal  charges  of  such  a  nature  ought  not 
to  be  made  unless  they  are  clearly  relevant,  nor  unless  they  can  be  sus 
tained  by  the  clearest  evidence.    But  they  have  been  shown,  on  the  eon 
trary,  to  be  destitute  of  any  shadow  of  foundation. '    The  United  States 
criticise  also  the  ruling  of  the  Judge  on  a  doubtful  point  of  law.    A  Gov 
ernment,  however,  is  not  to  be  charged  with  negligen(te  because  a  court 
of  competent  jurisdiction  nuiy  i)ronounce,  on  a  matter  of  law  or  fact, 
properly  submitted  to  it  for  decision,  a  questionable  or  even  an  eno 
neous  judgment.    The  Executive  has  performed  its  duty  when  it  Las 
brought  the  case  before  a  competent  tribunal,  and  cannot  afterward  take 
it  forcibly  out  of  the  control  of  the  court,  ov  refuse  obedience  to  its  tie 
cree.    If  this  be  true  (as  it  is)  in  ordinary  cases,  it  is  still  more  clearh 
80  Avhen  the  whole  transaction  takes  place  in  a  remote  colonial  depemi 
ency.^ 

51.  The  tVicts  relative  to  the  departure  of  the  ^Vlabama,  and  tluu'ir 

cumstances  which  preceded  it,  are  stated  in  the  Jhitish 
Case,  Part  VJ,  and  in  the  British  Counter  Case,  Part  VI. 

52.  It  has  been  seen : 

(a.)  That  this  vessel  was  constructed  by  a  large  shipbuilding  linn ai 
Birkenhead,  whose  regular  business  included  the  building  of  ships  of 
war  for  the  British  Government,  and  for  foreign  Governments  or  their 
agents,  and  who  built  her  to  order,  purely  as  a  commercial  trausactioii, 
and  without  any  knowledge  as  to  the  manner  in  which  she  was  after 
wards  to  be  armed  for  war — believing,  indeed,  according  to  their  own 
statements,  that  she  was  to  be  carried  for  that  purpose  into  a  Confeder 
ate  port ;  ^ 

(ft.)  That  the  first  representation  made  on  the  subject  was  received  on 
the  24th  June,  1802  f 

(c.)  That,  on  the  25th  June,  the  Government  ordered  inquiries  to  be 
made  on  the  spot,  and  also  referred  the  matter  to  the  Jjaw-Officers  of  the 
Crown;" 

{d.)  That  iiuiuiries  were  made  accordingly,  but  failed  to  produce  any  I 
evidence  that  she  was  intended  for  the  Confederate  Government  or  j 
service ; " 

(e.)  Tiiat,  on  the  1th  July,  the  result  of  this  inquiry  was  comniuiii 

'  British  Case,  p.  64  ;  Appendix  to  ditto,  vol.  i,  pp.  14, 27. 

*  Hriti.sh  Case,  pp.  G4-CG;  Appendix  to  ditto,  vol.  i,  pp.  ;{8-52. 

'British  Counter  Case,  i)p.  7(1-78;  Appendix  to  British  Case,  vol.  v,  pp.  19-2;;.  ^ 
■"The  United  States  have  called  attention  in  their  Counter  Case  (seetioii  v,  par  I 
:>)  to  the  fact  that  the  success  of  the  Florida  in  passing  throui^h  the  United  Statej 
Idockadingsquadron  otT  Mobile  was  described  by  the  Admiral  in  command  asoulyaiiWJ 
of  "ajyparcnt  neglect."  It  is  clear,  however,  that  the  Government  of  the  United  Sta:<"^  j 
did  not  so  regard  it,  by  the  very  severe  sentence  passed  on  the  otHcer  in  fault,  wliow 
summiirily  dismis.sed  from  the  service.     (Appendix  to  British  Case,  vol.  i,  p.  7;{.) 

*  British  Case,  p.  117  ;  British  Counter  Case,  pp.  81,  8(5. 

6Brif.sh  Case,  p.  fl ;  Ai)pendix  to  ditto,  vol.  i,  p.  177 ;  British  Counter  Case,  p.  ^^^ 
'  British  Case,  p.  Sii ;  Appendix  to  ditto,  vol,  i,  pp.  180, 181. 

*  British  Case,  p.  81$ ;  Api)endix  to  ditto,  vol,  i,  p.  182. 


BRITISH    ARGUMENT. 


277 


(iitecl  t(»  Mr.  Adiuns,  with  a  siifjgestioii  that  \u\  should  instruct  "  the 
United  States  Ooiisul  at  Liverpool  to  submit  to  the  ( Jollector  of  Customs 
ut  that  port  such  evidence  as  lie  might  i)ossess,  tending  to  show  that 
his  susi>icion8  as  to  the  destinat'on  of  the  vessel  were  well  founded.' 

(/.)  That,  on  the  10th  July,  a  letter  was  received  from  the  Consul, 
wbicli  furnished  no  evidence,  and  gave  nothing  but  mere  rei)ort8,  re- 
ceived from  anonymous  persons,  of  statements  alleged  to  have  been 
matle  by  others  wlio  could  not  be  found,  or  who,  if  found,  could  not  be 
lOiupelied  to  testify,  since  their  testimony  would  have  tended  to  crimi- 
nate themselves  ;'^ 

{(J.)  Tililt,  on  the  lilst  .Inly,  for  the  tirst  time,  some  evidence  was 
jiiotlueed  by  the  Consid  to  the  (.'oUector,  but  that  it  was  scanty  and  im- 
perfect ;  •' 

(h.)  That  some  additional  ca  idenfce  was  furnished  on  the  2.'5d,  and 
some  again  was  received  by  the  Board  of  Customs  on  the  lioth  ;* 

(('.)  That  on  Tuesday,  the  liDth,  the  Law-Otticers  reported  their  opinion 
tliiit  the  evidence  was  sufficient,  and  that  the  vessel  ought  to  be  seized.^" 

,13.  Jt  has  not  been  shown  by  the  United  States  that,  before  the  time 
when  the  lirst  representation  was  made  to  the  T3ritish  Government,  any 
mcumstances  proving  or  tending  to  pro\  e  that  the  vessel  was  intended 
tor  the  service  of  the  Confederate  States  were,  or  ought  to  have  been, 
known  to  this  Covernment  or  any  of  its  officers. 

54.  It  appears  from  the  statements  made  on  the  part  of  the  United 
States  themselves,  that,  although  she  had  been  an  object  of  suspicion 
to  the  United  States  Consul  for  more  than  six  months,  and  although, 
within  liis  knowledti'e,  she  had  been  gradually  advancing  to  (completion, 
liatl  made  her  tirst  trial  trip,  and  had  begun  to  get  ready  for  sea,  yet  no 
lividence  whatever  proving^  or  tending  to  prove,  that  she  was  intended 
tortile  Confederate  States  was  pro«luced  to  tlie  British  (lovernment  or 
;iiiy  of  its  officials  till  eight  days  before  she  actually  sailed,  and  at  a 
time  when  it  was  believed  that  she  might  depart  at  any  hour ;  and  that 
wliat  was  then  furnishe<l  was  so  imperfect  that  it  needed  to  be  strength- 
Hied  by  additional  evideiu-e,  i)art  of  which  was  delivered  on  the  sixth, 
and  otlier  part  on  the  fourth,  day  before  her  departure.  It  is  clear  then 
that  np  to  the  very  eve  of  her  sailing  the  Ameri<;an  Minister  and  Consul 
citliev  possessed  no  proof  at  all  that  she  was  intended  for  the  Confeder- 
ates, or,  having  such  proof,  did  not  disclose  it.'' 

.'t).  It  may  be  proper  here  to  notice  the  allegations  made  in  the  Case 

and  Counter  Case  of  the  United  States,  that  it  would  have  been  useless 

to  make  any  representations  to  the  British  Government,  because  that 

jiovernnient  required  to  be  furnished  with  technical  evidence  of  a  vio- 

iatioii  of  the  law  before  it  would  act,  and  even  before  it  would  institute 

!  iiuiulry,  and  would  listen  to  no  representations  which  did  not  furnish 

[  Mich  evidence ;  that  "Her  Ma  jtcsty's  Government  declined  to  investi- 

pite  charges  and  to  examine  evidence  submitted  by  Mr.  Adams  as  to 

repeated  violations  of  British  territory,  which  subsequent  events  proved 

were  true  in  every  respect;"  and  that  an  expression  in  a  letter  written 

''vEail  Kussell,  in  Marcli,  18G3,  coupled  with  the  division  of  opinion  in 

jtlie  Court  of  Exchequer,  respecting  the  case  of  the  Alexandra,  in  Jan- 

j'lary,  1864,  was  "  an  abandonment  in  advance  of  the  obligation  to  use 

[iliie  diligence."    All  these  assertions  are  erroneous.    The  British  Gov- 


liritiNh  Case,  p.  95;  Appeiulix  to  ditto,  vol.  i,  p.  i 
"ritisli  Counter  Case.  p.  Hr.. 


278 


BRITISH    ARGUMENT. 


||M,'     I 


ei'Dinent  did  indeed  require,  as  it  had  the  right  to  do,  before  seizinjj  n 
vessel,  either  to  have  iu  its  possession  wijat  seems  to  be  described  by 
the  United  States  as  "technical"  evidence,  that  is,  evidence  whicii 
could  be  publicly  produced  and  tested  before  a, judicial  Tribunal,  or  elsii 
to  have  reasonable  grounds  for  believing  that  such  evidence  would  h' 
forthcoming  before  the  trial  of  the  case  should  begin.    But  in  no  siiifjlc 
case,  from  the  beginning  to  the  end  of  the  war,  did  it  refuse  to  listen  to 
representations  on  th^i  ground  that  they  did  not  furnish  such  evidence, 
or  refuse  or  forbear  on  that  account  to  make  any  representation  tlic 
subject  of  instant  inquiry.    The  conduct  of  Mr.  Adams  in  18G2  could 
not  have  been  affected  by  circumstances  which  occurred  in  18G3  and 
1864.    Nor  does  it  appear  that  those  circumstances  did  in  fact  aftect  in 
any  way,  or  at  any  time,  either  the  conduct  of  Mr.  Adams  or  that  of 
the  British  government ;  since  Mr:  Adams  continued,  after  the  Alex 
andra  case,  as  well  as  before  it,  to  make  representations  to  the  Govern 
ment  in  every  case  of  suspicion,  without  producuig  "technical''  evi 
dence,  and  the  Government  continued  in  every  case  to  investigate  tacts, 
and  to  detain  vessels  against  which  any  proof  could  be  obtained,  on  the 
Bame  grounds  as  before.^    Finally,  it  is  clear  that,  in  the  Alabama  case, 
Mr.  Adams's  representations  were  not  deferred  till  he  had  obtained 
"  technical"  evidence,  since  they  were  made  a  month  before  he  was  able 
to  produce  any  evidence  at  all ;  and  the  Government  did  not  refuse  in 
quiry  till  after  evidence  was  furnished,  since  they  directed  and  prose 
cuted  inquiry  more  than  three  weeks  he/ore  any  '.vas  furnished. 

5G.  It  is  possible  that  the  "charges"  and  "evidence"  submitted  bv 
Mr.  Adams  as  to  "  repeated  violations  of  British  territory,"  to  Avliicli 
the  Government  of  the  United  States  refers,  may  have  reference  to 
certain  complaints  as  to  the  existence  of  Confederate  Agents,  the  ne};o 
tiation  of  pecuniary  loans,  and  the  ])urchase  of  supplies  and  munitions 
of  Avar  for  the  Confederate  States  in  this  country,  and  as  to  the  trade 
in  article's  contraband  of  war  and  the  fitting  out  of  ships  to  run  tlu' 
blockade,  which  were,  undoubtedly,  from  time  to  time,  made  by  ]\Ii. 
Adams.  If  such  complaints  were  in  any  cases  not  investigated,  it  was 
because  they  manifestly  related  to  acts  not  contrary  to  the  law  of  (ireat 
Britain,  and  which  Iler  Majesty's  Government  was  under  no  oblij;ation 
by  Treaty  or  international  law  to  prevent. 

57.  It  has  been  clearly  shown  that,  as  regards  the  period  wliieli 
elapsed  before  the  21st  of  July,  no  pretense  exists  for  imj)uting  negli 
gcnce  to  the  British  Government.  Eight  days  after  that  date  the  ves 
sel  sailed,  unarmed,  and  incai)able  of  offense  or  defense.  Within  tlu' 
interval  written  depositions  to  prove  that  she  was  intended  fortbc 
Confederate  Government  were  furnished  in  successive  portions  or  in 
stallments  to  the  British  Government.  That  the  question  whether  the 
evidence  was  credible  and  sufticient  in  law  to  sustain  a  seizure,  wasoiif 
on  which  the  Government  had  a  right,  before  acting,  to  consult  its  legal 
advisers,  and  to  take  reasonable  time  for  consideration,  is  undeniable; 
and  it  has  been  shown  that  the  depositions  were,  in  fact,  referred  to  tin' 
Law  Officers  as  soon  as  they  were  received  from  time  to  time. 

58.  The  United  States  allege  in  their  Counter  Case  (Sec.  VI,  jmr.  1| 
that  the  official  legal  advisers  of  the  Customs  gave  opinions  on  the  eyi 
dence  contained  in  Mr.  Adams's  representations,  which  were  in  contlict 
with  the  opinions  of  the  Law  Officers  of  the  Crown  ;  that  these  opinion'* 
were  given  upon  the  (piestions  after  they  had  been  submitted  to  tlif 
Law  Officers  of  the  Crown,  and  before  the  latter  had  rendered  their  opin 


'British  Case,  pp.  31-46;  Briti^ih  Counter  Case,  p.  SI 


re  seizirifj  a 
escribed  by 
ence  whicli 
mal,  or  elsft 
^G  wonlil  be 
iu  no  single 

to  listen  to 
;h  evidence, 
sntation  tlic 

18G2  could 
u  1803  and 
act  attect  in 
IS  or  that  of 
er  the  Alox 
the  Govern 
inical"'  evi 
tigate  tacts, 
lined,  on  tlio 
abaina  oaso, 
id  obtained 

he  was  able 
ot  refuse  in 
I  and  ])ios(' 
led. 

ubtnittetl  In 
^,"  to  Avliich 
reference  to 
ts,  the  nej;o 
d  niniiitions 
to  the  tiadf 

to  run  till' 
nado  by  Mr. 

ated,  it  was 

aw  of  (iroat 

o  obligation 

eriod  wliicli 
)uting  negli 
ate  the  vps 
Within  til'' 
ided  fortbc 
•tions  or  i" 
whether  tlic 
lire,  was  out' 
suit  its  legal 
undeniable; 
erred  to  tin' 

VI,  i»nr.  1) 
i  on  the  evi 
■e  in  contiict 
ese  oi»inioiis 
■^tted  to  tb.' 
I  their  opi" 


'-vt 


r0 

■  r'  .V 


II) 


1^' 


W 


«.r 


B 


/ERPOOL 


BRITISH    AWaiMENT. 


279 


ions,  and  that  tliti  (yii.stoins  Department  acted  on  the  oi)iniona  of  their 
own  advisers  at  a  time  when  they  must  ha\'e  known  that  the  Law  Offi- 
(•ers  of  the  Crown  had  the  subject  under  consideration. 

It  cannot  be  admitted  that  this  is  an  accurate  rej)resentation  of  the 
t'iicts  as  they  occurred.  The  opinion  of  the  le;;al  advisers  of  the  Cus- 
toms upon  the  evidence  furnislied  was,  that  it  was  insufficient  to  Justify 
the  seizure  or  detention  of  the  ship  by  the  Officers  ot'  Customs.'  They 
recommended,  however,  that  the  o])inion  of  the  Law  Officers  of  the 
Crown  should  be  taken.-  hi  the  interval  which  elapsed  before  the 
opinion  of  the  Law  Officers  was  received,  the  Customs  J)epartment,  as 
was  natural  and  right,  abstained  from  directing  a  seizure  whidi  they 
themselves  considered  would  be  unauthorized.  As  soon  as  the  decision 
of  the  Government  was  communicated  to  them,  immediate  steps  were 
taken  for  carrying  it  into  effect.-' 

5!).  In  the  Counter  Case  of  the  United  States,  (Sec.  Vf ,  par.  3,)  it  is 

further  stated  that : 

It  aiipciirs  that  tlio  Couiniissioners  of  Ciistoins  knew  on  Tiiosdiiy,  tho  iJ'Jth  of  .Inly, 
thiit  till)  Alabauiii  had  oscaiUMl  tliat  day,  and  tliat  it  was  not  until  Friihiy,  tho  lat  of 
Anj^nst,  that  the  (yoUoctoiM  at  IIolyh(3ad  and  Bt^anniaris  niccivod  instructions  to  dotaia 
licr.  On  tlio  iid  of  Anj^u.nt  the  Collector  at  Beanmaiis  leportiMl  that  lie  had  attended  to 
bis  instructions,  and  had  found  that  the  Alahania  had  left  Point  Lyuas  on  the  nu)rn- 
iii;;  111' Thursday,  the  ;Ust.  If.  tluMi^fore,  the  instinetions  <iiveu  on  the  1st  of  Au<fust 
had  licen  nivtMi  on  the  y.Mli  of  .Inly,  the  Alal>aina  inijj;ht  have  heen  (h'tained  at  I'oint 
JAiias. 

An  examination  of  the  facts,  distances,  and  «lates  will  show  that  such 
a  course  would  have  been  nearly,  it  not  quite,  impossible. 

The  Commissioners  of  Customs  received  telegraphic  information  o^^ 
the  LMUIi  of  July  that  the  vessel  had  left  the  i)ort  of  Liverpool  that 
morning.'  The  oi)inion  of  the  Law  Officers  that  the  vessel  should  be 
seized  had  not  at  that  time  been  received,  nor  was  anything  known  as 
to  her  movements.  The  United  States  Consul  at  liiverpool  appears  to 
liiive  been  in  tloubt,  even  the  next  day,  whether  she  had  not  gone  out 
on  a  trial  trip  and  would  not  return  to  iiiverpool.'' 

On  AVednesday,  July  ;>(),  the  Customs  Department  in  London  received 
.1  letter  froni  the  Solicitors  emi)loy(>d  by  the  CnitiMl  States  Consul,  in 
which  they  stated  their  luilief  that  the  vessel  had  gone  to  Queeiistown. 

On  the  same  morning,  the  United  States  Consul  at  Liverpool  received 
intorniation  that  the  steam-tug  Hercules,  which  had  accomi»anied  the 
Alabama,  had  returned  the  night  before,  and  that  the  master  reported 
the  gun-boat  to  be  cruising  oft"  I'oint  Lynas.  This  information  Mr. 
Dudley  communicated  to  the  Collector  of  Customs  «at  Liverpool,  in  a 
letter  which  seems  to  have  been  received  at  about  1  p.m.  the  same  day  ."^ 

Tliis  was  the  first  information  pointing  to  the  vicinity  of  i'oint  Lynas 
as  the  place  where  the  vessel  might  be  found.  I'oint  Lynas  is  situated 
iin  the  northern  c*..-,  of  the  Island  of  Anglesea,  about  fiftv  miles  from 
Liverpool,  and  more  than  two  huiulred  miles  from  Queenstown.  Tho 
nearest  custom-house  stJitions  are  Beaumaris  an«l  Holyhead,  from  which 
it  is  distant  in  a  direct  line  about  fourteen  and  sixteen  miles  respect- 
ively, but  much  more  by  road.' 

Supposing,  therefore,  that  the  CustomsCollector  at  Liverpool  had  been 
iit  the  time  aware  that  the  Government  had  decided  on  the  seizure  of 
the  vessel,  and  that  he  had  telegraphed  the  rumor  of  her  movements 
I'l'  to  London  on  the  afternoon  of  the  30th  of  July,  this  would  have  been 


Appendix  to  British  Case.  vol.  i.  p.  \9',\. 
■  Iliid,  p.  11)7. 

Iliid,  p.  an.'). 
'  Iliid.,  p.  2m. 


••  Ibid.,  p.  249. 
"Ibid.,  pp.  204,249. 
"See  nu'ip  opposite. 


■\" 


i»n 


/ . 


vSKETC  K 

/  of  ;h^ 

BRITISH 

SHOWING     THE    RELATI' 

Liverpool,   Beaumaris,  Moi 

(  Tdknt  irnni  the  Ad 


-/, 


°^^ 


/  HOUHtACl? 


/;  A  V 


t 


CAERNARVONSHIRE 


/ 


/ 


J 


b=ii 


Xr 


^k 


L 


f 


^m^^mm 


280 


MIMTISH    AKCJUMKNT. 


^jtl^HMSTTyiw^-ij: 


'     I 


I:  ^ 


the  earliest  iiioiuent  iit  wliieh  in.stnietioiis  eould  have  been  sent  to  tlic 
Collector  of  t'ustoins  at  Jieaumaris  to  look  out  for  the  vessel  otl"  Point 
Lyiias.  The  Collector  would  then  liave  proceeded  to  the  coast- iniiiinl 
station  at  Andwch,  and  from  thencc!  to  I'oint  Lynas,  to  make  inquiries: 
but  supposinj?  all  ]»ossible  dispat(;h  to  luive  been  used,  it  is  still  doubt- 
ful whether  he  could  have  succeeded  in  arresting  the  Alabama,  wliicii 
was  at  Moelfra  JJay,  live  miU^s  away,  and  which  left  at  .'5  o'clock  on  the 
morn  in  J?  of  the  .'Wst.'  lie  wonld  have  liati,  moreover,  nothinj-'  l»ut;i 
coast-j;uard  boat  at  his  disposal.  The  (;rcw  of  tlu>  v«>ssel  appear  to  have 
been  on  the  lookout,'  and  she  miKhl  without  dilliculty  have  stoanicd 
away  on  his  approach. 

(iO.  The  charge  broujjht  by  the  I'nited  States  aj^ainst  Great  JJritaiii  of 
a  failure  of  duty  in  respect  of  the  <lei>arture  of  the  Alabama  really  re- 
duces itself  to  this:  that,  in  the  interval  between  the  2Ist  andiilttli 
July,  durin}>"  which  the  evidence  was  comin;;'  in,  the  IJritish  (loveriiiueiit 
took  a  little  more  time  to  satisfy  its(df  that  there  was  ;jfround  sullicieiu 
to  warrant  a  seizure  than  the  United  States  think  was  necessary.  ():! 
this  ground,  in  reality,  tin;  United  States  found  their  claim  that  all  the 
losses  caused  by  the  Alabama,  after  she  had  been  armed  in  Porta jjfuesc 
waters  and  converted  into  a  Confederate  ship  of  war,  should  be  ])aiil 
by  Great  Britain. 

(»1.  On  the  part  of  Great  Uritain  it  is  submitted,  that  to  rest  suili 
a  claim  on  such  a  comjilaint,  the  <'omplaint  itself  bein;;'  supiiortod  b\ 
so   slight  and   at  the  best  so  tloubtful  a  foundation,  is  to  assume  n 
standard  of  international  obligation  which  was  never  before  acknowl- 
edged by  any  Governmoit,  and  could  Jiot  with  safety  ov  Justice  be  con 
ceded.     It  demands  that  the  condiu't  of  a  Government,  with  its  various 
departments,  with  modes  of  action  which  are  of  necessity  complex  and 
more  or  less  methodical,  shall  always  i)ro('eed  with  a  mechanical  pre 
cision  which  is  inapplicabh^  to  the  i)ra<^tical  business  of  life.     It  makes 
no  allowance  for  reas(»iiable  doul»ts,  for  the  importance  of  careful  ('e 
liberation  when  difficult  rpiestions  of  law  are  involved,  for  accidental 
delays  occasioned  by  illness  or  other  causes,  or  for  the  casual  impedi 
raents  which  are  liable  to  occur  in   matters   of  admiuistraiion.    The 
establishment  of  such  a  standard   would  be  neither  reasonable  nor 
just,  and  would  be  of  serious  (;onse(][uence,  not  to  maritime  States  alone, 
uor  in  questions  relating  to  neutrality  only,  but  to  the  general  peace 
and  tranquillity  of  nations.     It  will  be  remembered  that  one  cause  ol 
some  delay  iu  this  case  has  always  been  uiulerstood  to  have  been  tin 
illness  of  the  then  (Queen's  Advocate.' 

G2.  Further,  if  it  should  appear  (which  (Jreat  Britain  does  not  ad 
mit)  that,  through  the  fault  or  mistake  of  any  subordinate  official  of 
the  Government,  either  before  or  .'ifter  the  sailing  of  the  Alabama  from 
Liverpool,  a  chance  or  possibility  of  detaining  her  was  let  slip  without 
the  knowledge  of  the  Government,  this  again  cannot  be  held  to  aft'ord 
a  foundation  for  charging  Great  Britain,  as  against  the  United  States, 
with  a  failure  of  duty  and  a  grave  international  injury.^ 

03.  It  has  already  been  observed  that  an  equitable  judgment  as  to 
all  these  points  must  be  formed  with  reference  to  the  facts  as  tbey 
w^re  known  at  the  time,  and  not  as  varied  or  affected  by  subsequeut 
information  or  subsequent  events.    Mr.  Adams  made  a  contemporan 

'Appendix  to  British  Case,  vol.  i,  j).  207. 

''It  is  stilted  in  the  report  of  the  ('iistouis  Collector  at  Beaumaris,  that  they  woiilil 
not  allow  a  boat  from  the  shore  to  come  alongside.  (Appendix  to  British  Case,  vol.  i. 
p.  207.) 

^  British  Case,  p,  118 ;  Appendix  to  ditto,  vol.  i.  p.  •i4!> :  British  Counter  Case,  p.  "^'l 

*  British  Counter  Case,  p.  87. 


HKiTisif  AimnMi:\T. 


281 


wliieli 


•et'iil  ('e- 

ccidental 

iiupwli- 

oil.   The 

able  nor 

s  alone, 

,\1  peace 

ause  oi' 

)eeii  tilt 

not  ad- 
)liicial  of 
am  a  from 

witliout 
to  afford 
I  States, 

jut  as  to 
as  tliey 
jseqiieut 
mporan- 

hey  woiilil 
;!a8e,  vol.  i. 

se,  p.  ■^■'. 


•nrti-f;. 

f 


(H)iis  n'lKUl  of  tin*  tacts  as  to  tlie  Alabama  to  his  Gov(^riiment  upon 
rlio  1st  Anj>iisr,  1801,'  ami  on  the  l.'Jth  Au^iist  the  I'lesident  desired 
Mr.  Adams  to  express  to  Karl  linssell  his  satisfaction  at  the  "Just 
iiiuUViendl.v  proceedings  and  lanftuaije  of  the  IWitish  (lovernment"  with 
respect  both  t<>  the  Oreto  and  tlie  Alabanui.^  Xo  subsequent  depart- 
ure from  tliis  torn*  «!an  alter  the  fact  that  this  was  tiie  original  im- 
pression juoduiied  upon  the  mind  of  the  Ameri(;an  Government  by  the 
circumstances  which  had  occurred  down  to  the  1st  Au};ust,  18()l,  as 
rliey  were  known  to  ]\lr.  Adams  on  that  day. 

<i4,  The  facts  relative  to  the  (leorjria  are  stated  in  Part  VII 
(if  the  IJritish  Case,  and  in  Part  \'ll  of  the  British  Counter  Case. 

(m.  In  the  case  of  the  Georgia  no  information  or  representation  what- 
ever was  given  or  nmde  to  the  liritish  (Jovernment  until  six  days  after 
the  ship  had  put  to  sea.  Information  about  her  had  for  a  long  time  be- 
fore (according  to  the  stateiuent  of  the  United  States)  been  in  the  pos- 
session of  the  American  ^Minister  and  Consular  otiicers,  but  they  had  not 
communicated  it.'  If  what  they  knew  furnished  reasonable  ground  to 
believe  that  she  was  a  vessel  of  an  unlawful  character,  intended  for  the 
naval  service  of  the  Confederate  States,  they  ought  to  have  communi- 
(ated  it,  and  are  themselves  the  ]iersons  to  blame ;  if  not,  the  necessary 
couclnsion  is,  that  the  industry  of  these  oflicials  had  failed  to  discover 
any  infornuition  of  that  kind.  l]ven  tiie  statements  at  last  made  by 
.Mr.  Adams  were  erroneous,  as  well  as  unsupi)orted  by  any  proof. 

(JO.  That  there  was  nothing  about  the  vessel  herself,  or  her  equip 
inent,  which  could  mjdve  it  tlie  duty  of  the  Goveinment  to  seize  her,  or 
even  to  institute  inquiries  about  her,  nor  anything  which  ought  to  have 
excited  th(!  suspicions  of  the  officers  of  the  Revenue,  is  clear.  She  was, 
to  all  appearance,  a  vessel  intended  for  commerce;  and  her  build,  rig, 
and  iittings,  her  register,  her  clearance,  hei"  professed  destination,  the 
manner  in  which  her  crew  were  hired,  and  the  terms  of  hiring,  were  al' 
vTfectly  consistent  with  her  apparent  character  and  employment.^ 
T'lore  is  not,  at  this  moment,  any  evidence  whatever  that  she  bad  been 
specially  adapted  for  warlike  use,  either  wholly  or'  in  part,  before  she 
left  this  country. 

«I7.  The  inteliigen(!e  of  the  dejjarture  of  the  Georgia  from  the  Clyde, 
when  tirst  furnished  by  Mr.  Adams  to  the  lUitish  Government,  together 
with  the  assertion  (a  bare  assertion  unsui»ported  by  any  proof)  that  she 
was  intended  for  the  (Confederate  service,  was  accompanied  by  a  state- 
ment that  "her  immediate  destination  is  Alderney,  where  she  may 
probably  be  at  this  moment."  One  of  Her  Majesty's  ships  of  war  was 
sent  to  Alderney  in  consequence  of  this  statement,  but  it  proved  to  be 
erroneous.''    The  (reorgia  did  not  go  to  Alderney,  but  proceeded  to 

'  Appendix  to  Cajse  oftlio  Unitcnl  Stiites,  vol.  iii.  p.  :i5,  vol.  vi,  p.  414 

■Ibid.,  vol.  i,  p.  .j41. 

'British  Case,  p.  120;  ApiMnulix  to  <litto,  vol.  i,  p.  ;W9;  liritisli  Coimtoi'  Case,  p.  1)0;- 
Appendix  to  Ca.se  of  the  United  State.s,  vol  ii,  pp.  605,  6(57. 

'British  Case,  \i.  l'J2;  Appendix  to  ditto,  vol.  i,  pp.  404,  413;  Briti.sh  Counter  Case, 
\).t*9;  Appendix  to  Case  of  the  I'nited  State.s,  vol.  vi,  j).  .512. 

*  Appendix  to  British  Case,  vol.  i,  p.  418.  It  i.s  remarked  in  the  Counter  Case  of  the 
Tuited  States  (sec.  vii,  par.  'A)  that  "it  appears  that  orders  were  given  to  a  British 
vessel  of  war  to  proceed  to  Alderney ;  but  it  does  not  ap])ear  whether  those  orders 
were  or  Avero  not  obeyed."  Her  Majesty's  Government  did  not  think  it  desirable  to 
add  to  the  aLeady  voluminous  correspondence  laid  before  the  Arbitrators  by  the  inser- 
tion of  documents  which  were  not  absolutely  neces-sary.  It  might  be  taken  for 
granted,  and  it  is  of  course  the  fact,  that  the  captain  of  Her  Majesty's  ship  Dasher 
obeyed  his  instructions,  an<l  it  was  equally  certain  th.at  he  could  obtain'no  iutellijjence 
at  Alderney  of  either  the  Alar  or  Japan,  both  of  which  vessels  were  afterward  found 
to  have  gone  not  to  Alderney  but  to  Ilshant.  The  dispatch  from  the  Governor  of  Al- 
•leriiey  reporting  the  unsuccessful  result  of  the  mission  of  the  Dasher  is,  however,  at 
tlie  (lispo.sal  of  the  Arbitrators  if  they  should  desire  its  production. 


'Hf 


,Mt 


mm 


282 


BKinSIl    AUOUMKNT. 


i 


'Ml**  Slu'n»ml<i;ih. 


Frencli  waters,  wIhtc  she  received  Iier  nrinaineiit.  It  is  sii^gt'stoH,  on 
the  part  of  the  ITiiited  States,  that  it  was  tlie  duty  of  the  iJritish  (lov 
ernment  to  eini>loy  its  naval  fontes  in  searclnnja;  tor  and  i)ursniii{,'  Imi 
on  the  lii^h  seas.  No  such  duty  exists,  or  has  ever  been  recoyni /,»'()  liy 
nuiritinie  powers.  It  appears  further  to  be  s^jjjgested  tiiat  she  ouylit  to 
have  been  i)ursued  and  seized  in  French  waters.  So  far  was  tlii.s  IVom 
being  the  duty  of  the  Jiritisli  (lovernnient  tliat  it  wouhl  liave  been  ;i 
violation  of  the  territorial  sovereij^nty  of  France  and  a  direct  olVt'Dsc 
ajjainst  the  law  of  nations.'  Her  Majesty's  (lovernnient  is  not  aware 
that  any  claim  has  ever  been  made  ujjon  France  by  the  United  Statos, 
on  the  pround  that  this  vessel  was  not  prevented  from  beinf>-  arnu'd  for 
war  within  the  territorial  jurisdiction  of  that  country. 

G.S.  The  facts  relative  to  the  Shenandoah  are  stated  in  Part  VIII  of 
the  IJritish  ('ase,  and  in  Tart  VII  of  the  Uritish  ('(tiuitcr 
Case. 

G9.  The  Shenaiuloah  was  a  vessel  desijjned  and  built  solely  for  a  iiicr 
chant-steamer,  and  with  a  view  to  employment  in  the  Ohina  track'; 
was  originally  emjdoyed  in  that  trade;  was  afterwards  sold  in  the  Lou 
don  market  to  a  Liverpool  ship-owner ;  and  was  by  him  dispatciuMl 
from  London  w  ith  a  clearance  for  IJombay.  At  the  time  when  she  left 
England  she  was  in  no  way  fitted  out,  armed,  or  e^juipped  for  wiir. 
She  had  on  board  two  smooth-bore,  lli-jmunder  guns,  i)ut  they  wore 
only  the  same  guns  which  she  had  carried  during  her  nu'rcantile  em 
ployment,  and  such  as  are  Jisually  carried  by  ships  trading  in  the  Cliiini 
seas,  to  be  used  as  signal-guns,  and  for  other  ]>ur|)oscs  common  to  inor 
chant-vessels.-' 

70.  No  representation  was  made,  no  inftuiuation  whatevcu"  was  jiivcn 
to,  or  possessed  by,  the  British  (Joverument,  respecting  this  shij)  hct'ori' 
her  departure  from  England.  The  Government  tirst  beard  of  her  livf 
weeks  after  she  had  sailed,  aiul  then  not  from  the  Minister  (tr  Consul  of 
the  United  States,  but  from  Jler  JNlajesty's  C'onsul  at  Tenerifle.' 

71.  Tliere  is  not  the  slightest  pretense  for  alleging  that,  in  the  cliai 
acter  and  ai)pearance  of  the  vessel,  in  her  tittings  or  equipment,  in  licr 
clearance,  or  in  the  hiring  of  her  crew,  there  was  anytL::^g  whatever  to 
excite  susi)icion  in  the  ollicers  of  the  CJovernment  at  the  jxn't  of  Loii 
don  or  elsewhere,  or  to  lead  to  iuipiiry  ;  nor  that  she  had  been,  in  tact, 
specially  adapted  to  warlike  use,  either  wholly  or  in  part,  before  lier 
tinal  departure  from  this  country.  It  has  indeed  been  suggested,  on  the 
part  of  tlic  United  States,  that  the  liritish  Government  ought  toliine 
known  the  name  of  the  English  merchant  by  wliom  she  had  been  bous'Iit 
and  was  owned  when  she  left  England,  and  the  circumstance  tliiit  In* 
was  a  connection  by  marriage  of  a  member  of  the  Liverpool  tirm  ol 
Eraser,  Trenholm  and  Co.;  and  that  it  was  a  proof  of  a  want  of  "the 
anost  ordinary  diligence,"  on  the  part  of  Her  Majesty's  Covernment,  not  to 
be  acquainted  with  and  "  take  notice  of"  this  circumstance.^  On  the  part 
of  Great  l>ritain,  it  is  not  thought  necessary  to  trouble  the  Arbitrators 
with  any  argument  in  answer  to  this  remarkable  suggestion. 

72.  In  the  case  of  the  Shenandoah,  as  in  that  of  the  Georgia,  tbe 
United  States  seek  to  hold  Great  Britain  liable  for  negligence  in  not 
Laving  prevented  the  eciuipment  or  departure  of  a  vessel  which  was 
never  fitted  out,  armed,  or  e<iuipped  for  war  in  IJritisb  territory,  and 


"was  never  specially  adai)ted  therein  for  warlike 

'  British  Couuter  Case,  pp.  90, 5U. 
'^  British  Ciise,  p.  143 ;  Appemlix  to  ditto,  vol.  i 
Couuter  Case,  p.  i)3. 

^Britisli  Case,  i>.  136;  Appeutlix  to  ditto,  vol. 
'Case  of  the  linited  States,  p.  417. 


use ; 


as  to  which  m' 


l.p.  4^<l.  494-1)7,  724,  725;    Hritisli 
p.  477. 


MKITISI!    MtOHMKNT. 


2H3 


liiii'iiii'tl  l>>  IIm'  llnl 
imI)  (io\i<ittili)'iit  III  rr 
It. in)  t«  III''  ii-|trt- 
ai'lllliliiili<  III  M  r. 
Ailiiliis. 


ri'|>i«-.s(Mitati(>ii  or(M»iiiiiuini(nitioii  Inul  been  iiiiuU'!  to  tlic  Ci<»vcniiiH'iit,  luul 
no  },'roiiii(l  whiiti'vcr  existed  for  bclicviii};  that  slie  was  intcmh^d  for  tlu' 
(loiifodcrato  States ;  whieh  pri'seiited  no  cireunistaneo  of  suspicion,  and 
of  tiie  very  existence  of  which  tliedoverninent  was  totally  uninformed. 
Those  i)retensions  are  unsupported  alike  by  tlie  three  Itules,  and  by  the 
previously  reiiofj^nized  principles  of  international  law. 

'.■».  It  is  submitted  that,  as  to  every  one  <)f  thes(^  four    ,. ,„ „  ,„ 

ships,  the  United  States  liav«'  failed  to  establish  the  facts  ;::;!,;;::'t;i^^^^^^^^^^^ 

iKM'cssary  to  sui)i)ort  an  awaiil  aj;ainst  (Ireat  Britain.     It  

lias  not  been,  and  cannot  be,  shown,  in  the  case  of  any  one  of  them, 
that  tlui  llritish  (loverinneut,  havinj»-  leasonable  ground  to  believe  that 
she  was  intended  to  cruise  and  carry  on  war  aj>ainst  the  I'liited  States, 
failed  to  use  diu»  diligenci!  to  ])revent  her  from  being'  fitted  out,  armed, 
oie(iuipj)ed  for  that  purpose  within  IJritish  territory,  or  from  de|)artinj; 
thence,  after  having  been  specially  adapted  within  it  to  warlike  use. 

74.  It  was  stated  in  tlni  case  of  (Ireat  liritain  that,  in  the     ,,,,„,,i  , ,„ 

coarse  of  the  years  l.StJl,  18<;i-',  bSti.'i,  l.S«i4.  and  180.1.  nmny 
lejaesentations  were  a<ldresse«l  by  Mr.  Adams  to  Her  3Ia- 
jcsty's  Government  respecting  vessels  which  he  believed  to 
he  either  actually  employed  in  carrying  on  trade  with  blockaded  jtorts 
in  articles  contraban«l  of  war  or  other  things,  or  to  be  i)n'paring  for 
snch  em]»loyment ;  and  alst>  with  resjiect  to  other  vessels  which  he  be 
Meved  to  be  intended  to  be  use<l  as  privateers  or  commissioned  ships  of 
the  Confederate  States  in  cruising  and  carrying  on  war  against  the 
I'nited  States.  To  comi>laints  of  trallic  carried  on  with  blockaded  j)orts, 
or  in  articles  <'ontraban<l  of  war,  it  was  answered,  on  the  part  of  Jlei- 
Majesty's  (Jovernment,  that  these  wcae  enterprises  which  Her -Majesty's 
(lovernnu'nt<*ould  not  undertake  to  ])reveut,  and  the  repression  of  which 
belonged  to  the  I'uited  States  as  a  belligerent  I'ower.  Allegations,  on 
the  other  hand,  that  vessels  were  being  prejiared  for  <'ruising  or  carry- 
iiiji' on  war  were  imnu'diately  referred  to  the]>rai)er  oHicers  of  the  (lov- 
iTimient  at  the  several  localities  for  careful  investigation  and  iiupury. 
11".  on  such  investigation,  it  ap|»eared  by  sullicient  jtriiiKi-fitcir  evidence 
that  any  illegal  act  was  being  or  had  been  committed,  the  vessels  were 
lortliwith  seized,  and  proceedings  instituted  according  to  law  ;  if  not, 
the  result  was  at  once  communicated  to  ^Ir.  Adams,  and  directions  were 
ji'iven  to  the  local  authorities  to  Match  closely  the  v«'ssels  as  to  which 
Ills  suspicions  had  been  aroused.' 

It  is  said,  in  I  he  Counter  (-ase  of  the  United  States,  (Sec.  J II,  par.  14^ 
that  "the  ITniteil  States  do  not  understand  that  it  is  true  that  'alleg.. 
tioiis  that  vessels  weie  being  i»repared  for  cruising  or  carrying  on  war* 
were  in  all  cases  followed  by  seizure  of  the  vessels  when  sutiicient 7»/m<'/- 
facle  evidence  of  the  illegal  i>uri»ose  was  furnished.  They  understand 
the  exact  contrary  to  be  the  (-ase." 

The  general  course  i)ursued  by  the  Jlritish  (Jovernment  in  these  mat- 
ters is  correctly  «lescribed  in  the  foregoing  extract  from  the  liritish  Case 
The  United  States  question  whether,  ''  ///  all  m.sr.s,"  this  course  was 
adhered  to.  Even  with  this  addition,  however,  the  lu'oposition  cpies- 
tioned  is  true,  excluding  only  the  case  of  the  Alabama,  in  which  some 
evidence  sutticient  to  .justify  action  on  the  part  of  the  (Jovernment  was 
iudeed  furnished,  but  furnished  so  late  that  the  dei)arture  of  the  vessel 
took  ]>Iace  before  the  (rovernment  had  been  advised  to  that  effect. 

"').  It  is,  however,  alleged,  on  the  part  of  the  United  States,  that  each 
of  these  four  vessels,  if  not  actually  armed  and  equipped  fi,„rBP  omt  ni. 
lor  war  within  British  territory,  obtained  her  armament  from  "S';v'."U"  ur"ll 
thence;  that  this  armament  was  in  each  case  purchased  and  if""<'"'ti!mai.,. 


■I. 


'  British  Case,  pp.  31,  32. 


2H4 


mtlTISII     AKCil'MKNT. 


fft,: 


N(Mit  out  by  till'  siiiiic  pci'soii  or  lutrsons  who  hail  |>i'o(;iir(Ml  aiKl  .sent  oiu 
the  ship;  that  such  person  or  lunsons  was  «)r  weio  an  aji^Mit  oi*  aj;('iit> 
of  the  (Jovninnont  of  i\w  ConfcMU'i-ato  States,  enipUiyed  for  tht^se  pm 
poses;  and  tluit  the  (iiews  with  whicth  tin'  vessels  were  manned  wen 
cliietly  eoinposed  of  liiitish  subjectts,  obtained  from  Kn^hind  by  tlie  saiiii' 
agency.  Ami  it  is  contended  tliat,  under  these  circumstances,  tin*  Trj. 
bumil  onj>ht,  as  ayainst  (ireat  IJritain,  to  assume  tliat  tlu'se  vessels  wcrt- 
leally  arme(l  and  fitted  out  witliin  iliitish  territory,  and  to  make  its 
award  on  that  assumption. 

7().  To  assnnu',  un(h'r  any  circumstances,  that  vessels  armed  in  tiu' 
waters  of  l'ortuj;al(U'  France  were  armed  in  (Ireat  lUitaiu,  istoassnniea 
fiction;  and  to  bas«' an  ar^uuu'nt  or  award  on  this  assumi>tion,  would 
be  to  base  an  ar};unu':nt  or  award  upon  a  ti(;tion.     International  dulics 
and  liabilities  cannot  be  made  to  repose  on  such  a  foundation.     If  it  Im- 
meant  to  affirm  that  a  neutral  (iovernmeut  is  as  much  bound  to  ])rev(;iii 
arms  from  beiny  sent  abroad  for  this  i)iui)ose  and  under  these  circiim 
stances,  as  to  prevent  the  a(!tual  armiuj;-  of  a  bellijjercnt  vessel  of  wai 
within  the  neutral  Jurisdiction,  where  is  the  ju'oof  ofthis  supposed  olili 
jUi'ation,  and  when  was  it  sanctioned  by  the  fjeneral  consent  of  nations f 
It  is  perfectly  unknown,  and  was  never  heard  of  before.    The  acts,  w  liicli 
are  supposed  to  be  virtually  the  same,  and  whi(^h  the  lU'utral  (Jovcrii 
ment  is  on  that  account  supposed  to  be  under  the  sauw  obliji:atioii  to 
prohibit,  are  in  reality  «litt'ereur,  and  the  reasons  which  sui»port  the  in 
ternational  obli<>ation  in  the  one  case  are  wantinjij  in  the  other.     To  at 
temj)t  to  found  such  an  obli;;ation  on  the  second  of  tln^  thn-e  Itiiles. 
which  prohibits,  in  lanj^uaftc  previously  familiar  to  publicists,  the  useot 
neutral  territory,  by  the  permission  or  with  thea(M[uiesc»'n<!e  of  the  neii 
tral  Sovereijin,  as  a  base  of  naval  operations,  or  for  the  trucinil  or  aiui 
mentation  of  military  suppli«'S  or  arms,  would  be  clearly  indefensible 
Upon  the  manner  in  which  the  phrase  "base  of  operations,"  and  otlior 
similar  expressions,  have  been  from  tinie  to  time  a])plicd  to  subjects  not 
within  their  proper  meaning  in  the  diplomatic  correspondence  of  tin- 
.Vraerican  (lovernment,  soun  observations  will  be  made  hereafter;  in 
this  place  it  is  sutUcient  to  point  out  that  the  sendiiijy;  abroad  of  nniiii 
tions  of  war  which  are  intended  to  be  used  in  arming  a  particular  ship, 
is  not  the  sanu*  thing,  ami  does  not  involve  the  same  hostile  use  of  iieii 
tral  territory,  as  the  placing  of  the  same  arnniment  on  board  of  the 
belligerent  vessel  in  the  port  of  the  neutral  country,  from  whence  she 
is  to  sail  when  so  armed  ;  nor  is  it,  like  the  Latter,  comparatively  easy  ot 
repression  without  an  unreasonable  interference  with  neutral  trade. 
How  indeed  is  the  neutral  (lovernment  to  know  the  destination  of  the 
arms,  or  for  what  nnirket  or  vessel  they  are  intended  if    This  is  a  matter 
into  which  neutral  (lovernmeuts  have  never  been  held  bound  to  inquire, 
and  would  certainly  never  undertake  to  inquire.     Does  the  supposed 
obligation  in  respect  of  the  export  of  arms  arise  when  ship  and  arms 
are  procured  from  different  countries,  or  only  when  they  are  obtained 
from  the  same  country  ? — when  from  diflferent  ports,  or  only  when  from 
the  same  port  ? — when  i)urcha8ed  by  different  agents,  or  only  when  the 
agent  is  the  same  '.     Where  is  the  line  to  be  drawn,  and  is  it  to  be  the 
duty  of  the  neutral  Government  to  search  out  all  these  vanious  circuui 
stances,  or  how  many  of  them ;  and  how  is  it  to  do  so  ?    Little  consid- 
eration is  needed  to  show  that,  although  the  several  acts,  by  which  a 
ship,  and  the  armament  which  is  to  be  i)ut  on  board  of  her,  are  sepa 
rately  procured  and  sent  abroad,  may,  as  against  the  persons  by  whom 
or  by  whose  orders  they  are  done,  be  regarded  as  so  many  steps  in  the 
execution  of  a  single  enterprise,  and  parts  of  one  transaction,  they  can- 


MKITIMII    AK(JI  MKN  r. 


2sri 


[l« 


„jt'  witli  jiiHticc  Ih>  .so  r<'}>iinl(Ml  as  aj^ainsf  Hir  iifiitral  (ioviMiiiiu'iit, 
which  (HO  far  as  it  ( iiii  deal  with  thciii  at  all  in  tiui  way  oi'  invvoiition) 
Clin  onlydral  with  thiMiisoparatiOy,  and  which  may,  and  most  fVoqiiently 
A-ould,  l)e  wholly  ignorant  of  tlio  cxistciKrc  of  tlii;  plan  that  was  tluMi* 
sole  ('onii('(',tin{f  link,  or  at  any  rate  unable  to  suhstantiat*'  it.  For  the 
;i(!ts  done  beyond  its  territorial  Jnrisdi<tion,  wliether  hyneiitial  citizens, 
iir  by  belligerents  with  their  aid,  the  neutral  Slate  cannot  Im-  held  re- 
sponsible.' 

77.  The  facts  relative  to  the  arming  of  the  seveial  \('ss«'ls  now  in 
t|uestiou  have  been  stated  in  the  Case  and  Countei'  Case  of  (Ireat 
Kritaiu,  and  (hey  wdl  be  found  to  illustrate  the  truth  of  the  forcfjointr 
propositions. 

7<S.  T\w  Alabanui  deitarted  from  (ireat  Ibitain  wholly  unarmed,'  and 
appears  to  have  been  (^piipped  for  war  in  the  waters  of  the  Azores,  or 
partly  in  Ihose  waters  and  partly  on  tlu^  hifj^h  seas,  re<*civinf;  her  arum 
luont  from  two  vessels  which  sailed  lespectively  at  <lilferent  tim«'s  from 
Liverpool  and  from  Loiulon,  without  any  apparent,  known,  or  susjau^ted 
comu'ctiou  with  Ii«'r.  One  of  these,  the  Aj^rippina,  cleared  in  the 
month  of  Auj;ust  from  the  p(ut  of  hondoii  tor  Denu'rara;  the  other,  the 
Bahanui,  cleared  from  Liverpool  on  the  llth  of  the  same  month  tVu- 
Xassau.'  There  is  nothiuf;,  so  far  as  the  Jbitish  (ioveruuHMit  is  aware, 
to  distinguish  these  two  vessels  from  others  freijilit<'d  with  munitions  of 
war,  which  mi<iht  be  destined  for  places  in  tl^e  Confederate  States,  or  to 
attract  the  special  attention  «)f  tlie  olllcers  of  customs  at  tlu'  se.eral 
ports.'  Mo  information  ever  reacihed  the  Ibitish  (loveriunent  v.hicli 
could  lead  to  the  belief  that  they  werc!  «Mn]»loyed  to  <*arry  arms  to  j  ship 
intended  for  the  war  service  of  the  Confed(>rate  States,  or  for  any  jmr- 
pose  which  the  IJritish  (Jovernment  .'ould  be  called  u|Km  t    prevent. 

7!>.  The  (Jeorjiia,  which  also  left  (Ireat  Ibitain  unarmed,  received  her 
armament  in  rren<tli  waters  from  the  Alar,  a  small  steamer,  which  was 
jitalcd  to  be  a  rc^jijulii'  trader  between  the  jjortof  Newhaveu  in  Sussex,  on 
die  Jiritish  (.'hanucl,  and  the  Channel  Islands.'  The  Alar  sailed  from 
Xewhuven  with  a  rej^ular  (ilearance  for  AhUuney  ami  St.  ]\ralo.     Itsub- 

'  iSw^  corn'spoiKlciicc  hctwocii  tlw  l'nit4'(l  Stales  and  i'orhijial :  Mr.  .1.  (/.  AdaniH  to 
iho  Cliovaliei- do  SoiTu,  Maicli  14.  IHIH,  and  Sfi»tfiiil<(r  :'.(»,  I.'^^(»,  ^A]»itfr!(li\  to  IJrifisli 
I'iiHo,  vol.  iii,  pp.  l.'iO,  l.">7.) 

-Ihitish  Caw,  p.  07;  Appendix  lo  ditto,   -1)1.  i,  p.  20.'>. 

'liritisli  CuHc,  lip.  1(10-104;  Ajiptindix  to  ditto,  \o\.  i,  pp.  '^OH-'ii:'.. 

'  Ainonfj  tlie  papei'H  laid  bnfoic  Conjjtn'ss  by  llio  (Jovciiinjeiit  of  tlu'  I  Initc^fl  States,  and 
now  alMO  printed  in  vol.  i  of  the  A|»pendix  to  the  Hritish  Case,  (p.  y.Vi,)  are  two  dJH- 
jiatches  from  Mr.  l>udley,  the  United  Statew  eousnl  at  Liveijiool,  t(»  his  (Jovernnu*nt. 
The  first  of  thewo, dated  Angnst  12,  I^Ct^,  states  that  he  "understands  that  J^aird's  jj;nn- 
hoat  2!M)  is  somewhere  either  on  thti  coast  of  Kngland  or  Ireland,  and  that  they  are 
sliippinjt  to-«lay  lifty  inoro  men  who  are  to  ho  taken  to  her  to-nij^ht  on  a  steamer."  In 
tbe  Keeoud,  dated  the  following  day,  he  reports  that  the  mcMi  were  placed  on  hoard  the 
IJahama,  which,  after  shippin<j  them,  and  cannon,  shot,  and  ammnnition,  had  left  her 
ilock  at ;{  o'clock  that  morniny,  and  was  no  Ioniser  lo  lit;  seen.  She  ha<l,  in  fact,  sailed 
to  moot  the  Alabama,  which  was,  at  th.vt  time,  not  otf  the  coast  of  Kn^iland  or  Ireland, 
.18  supposed  by  Mr.  Dndloy,  bnt  at  Terceira,  in  the  Azores,  (see  .iflidavits  of  Keddeii 
and  Youge,  Aj)pendix  t(»  Hritish  Case,  a  «;'.  i,  pp.  210, 220. )  'i'here  ajijiears  no  reason  to 
believe  that  Mr.  Dndley,  before  tlie  sailinji;  of  the  Halianui,  knew  or  snp])osed  that  she 
was  intended  to  carry  ont  men  or  arms  for  the  Alabama ;  nor,  thon<j;h  he  states  that  he 
had  (apparently  on  the  1  nth,  after  her  departnre)  written  all  the  particnlars  to  Mr. 
.Vdams  in  London,  aud  to  the  United  States  consul  at  Dublin,  Avas  any  representation 
made  or  information  given  to  the  British  authorities  either  in  Ltnulou  or  Liverpo(»l  on 
the  subject.  The  first  information  received  by  Jler  Majesty's  government  of  the  arnui- 
iiient  of  the  Alabama  oft"  Terceira  was  derived  1  u\  :i  report  of  the  customs  oflicials  jit 
liiverpool,  dated  the  :$(l  .September  following,  «  the  return  of  tJie  TSalianm  to  that 
port,    f  Appendix  to  British  Case,  vol.  i,  p.  208.) 

'  JJritish  Ca.se,  pp.  121-128;  Appendix  to  ditto,  vol.  1,  pp.  401-418. 


I 


i 

•■^■^^■■.'■™5!« 

yl 

:Km 

1 

■fi'-k  ^^'^jA. 

H 

■■T';:B-'^|->1^lj''-r-,i  |i^H«[  w- 


286 


BRITISH    ARGUMENT. 


seqnently  api)eared  that,  about  two  hours  before  her  departure,  (which 
occurred  at  2  o'clock  iu  the  morning,)  a  number  of  persons,  some  of  whom 
appeared  to  be  seamen  and  some  mechanics,  had  arrived  by  railway,  and 
gone  OD  board  of  her.  On  the  day  following  that  on  which  she  sailed, 
the  agent  for  the  steamer  Ijld  the  collector  of  customs  that  she  had 
munitions  of  war  on  board.'  At  the  time  of  her  departure,  there  was 
nothing  whatever  to  connect  her  with  the  Georgia,  which  had  sailed 
three  days  before,  under  her  original  name  of  the  Japan,  from  Greenock, 
for  Point  de  Galle  and  Hong-Kong,  and  of  which  nothing  was  known  to 
the  customs  officers  at  Newhaven  or  to  the  Government ;  nor  does  there 
appear  to  have  been  anything  which  would  have  warranted  the  customs 
officers  in  detaining  or  interfering  with  the  Alar.  No  information  had 
been  received,  nor  was  there  any  fact  within  the  knowledge  of  the  Gov 
ernment  or  their  officers,  until  she  had  already  sailed,  indicative  of  any 
thing  hostile  to  the  United  States  in  her  employment  or  destination. 

80.  The  Shenandoah,  which  likewise  sailed  from  England  without 
armament,  took  it  on  board  in  Portuguese  waters,  near  to  the  MadeirH 
Islands.^  The  steamer  Laurel,  by  which  it  was  conveyed  thither,  had 
sailed  from  Liveri)ool  with  a  regular  clearance  for  Nassau  and  Mata 
moras.^  There  was  nothing  whatever  to  connect  her  with  the  Sbenan 
doah,  which  had  sailed  on  the  previous  day  from  the  port  of  Loudon  for 
Bombay,  under  her  original  name  of  the  Sea  King,  and  of  which  nothing 
was  or  could  be  known  to  the  customs  officers  at  Liverpool,  nor  to  the 
Government.  It  api>ear8  that  some  suspicion  had  been  excited  in  the 
mind  of  the  United  States  consul  at  Liverpool  as  to  the  Laurel ;  but  the 
suspicion  was  that  she  was  intended  to  become  a  Confederate  cruiser  or 
privateer.*  He  had,  as  he  said  himself,  no  evidence,  and  he  made  no 
representation  to  any  officer  of  the  Government.  Nor  does  there  appear 
to  have  been  any  ground  of  belief  or  suspicion  which  would  have  w&r 
ranted  the  customs  officers  in  detaining  or  interfering  with  her.  Of  her 
real  errand  nothing  whatever  was  known,  until  the  receipt  of  intelligence 
from  the  British  consul  at  Tenerift'e.  Her  Majesty's  Government  is  not 
aware  that  any  claim  has  ever  been  made  by  the  United  States  against 
Portugal,  on  the  ground  that  the  Shenandoah  was  converted  into  a  shij) 
of  war  within  Portuguese  territory. 

81.  The  Florida  is  the  only  vessel  of  which  it  is  alleged  that  she  was 
armed  in  British  waters.  The  circnmstances  stated  on  this  head  in  cer 
tain  affidavits,  which,  more  than  two  years  afterward,  were  for  the  first 
time  produced  by  the  United  States,''  and  which  the  British  Government 
has  no  means  of  verifying  or  disproving,  were  as  follows:  That  before 
the  Florida  (then  known  as  the  Oreto)  sailed  from  Nassau — which  she  did 
after  having  cleared  as  a  merchant-steamer,  and  with  a  very  small  crew, 
hired  in  the  port — a  schooner  called  the  Prince  Alfred  had  put  to 
sea,  apparently  with  the  design  of  running  the  blockade,  and  freighted 
witli  some  guns  and  atnmuiiition  as  cargo.  Tliero  was  nothing  what 
ever  to  connect  her  w  ith  the  Oreto,  which  was  then  lying  in  the  har 
bor,  after  having  been  released  by  the  judge  ot  the  proper  court  from 
seizure  under  tlie  charge  i)reviously  made  against  her,  but  not  snb 
stantiated,  of  violating  the  Foreign-Enlistment  Act.  There  does  not  ap 
pear  to  have  been  any  circumstance  within  the  knowledge  of  the  local 
authorities  to  direct  special  attention  to  the  cargo  of  the  Prince  Alfred. 
to  disclose  her  errand,  or  to  furnish  a  reason  for  detaining  her.    No  com 

■BritiMli  Case,  p.  1'23;  Appendix  to  ditto,  v«il.  i,  p.  405. 

-HiitJNli  Case,  pi».  i;5(i-141 ;  Appendix  to  dittct,  vol.  i,  pp.  477-490. 

'Appi  iidix  to  BritiKJi  Vaw,  xo).  i,  pp.  492, 41)15. 

^Appendix  to  Case  of  United  States,  vol.  vi,  p.  556. 

'  Kntish  CuHe,  p.  07  ;  Appeudix  to  ditto,  vol.  i,  p.  85. 


BRITISH    ARGUMENT. 


287 


plaint  or  representatiou  respecting  her  seems  to  have  been  made  by  the 
coDSol  of  the  United  States  at  the  time,  nor  until  .about  a  month  after- 
ward.' It  is  stated  that  while  at  sea  she  was  overhauled  by  the  Oreto, 
(or  Florida,)  and  that  the  two  vespels  then  proceeded  to  Green  Cay,, 
where  the  cargo  of  the  Prince  Alfred  was  transferred  to  the  Florida.  If 
this  was  so,  it  was  certainly  a  viola.tiou  of  British  territory  by  both  ves- 
sels. But  it  was  a  violation  which  furnished  no  proof  of  negligence  on 
tbe  part  of  the  local  authorities,  still  less  of  the  British  Government,, 
which  was  the  party  wronged  and  not  the  wrong-doer.  Green  G&y  is  a 
small  island  at  a  considerable  distance  from  Nassau,  uninhabited,  and 
visited  only  by  fishermen.^  Violations  of  neutral  territory  committed, 
by  a  belligerent  in  remote  and  unfrequented  places,  where  no  effective 
control  can  be  exercised,  were  never  before  imputed  to  a  neutral  Govern- 
ment, as  permitted  or  allowed  by  it  in  breach  of  its  obligations  toward 
the  other  belligerent.  Over  such  a  dominion  as  the  Bahamas — which 
consist  of  several  hundred  islands,  scattered  over  a  wide  surface,  most 
of  them  desolate  and  uninhabited,  and  some  merely  small  rocks  ol  islets 
—no  Government  in  the  world  could  reasonably  be  expected  to  exercise 
sach  a  control  as  to  prevent  the  possibility  that  acts  of  this  kind  might 
be  furtively  done  in  some  part  of  its  shores  or  waters. 

82.  It  is  suggested,  on  the  part  of  the  United  States,  that  the  arms 
finally  put  on  board  of  the  Florida  had  previously  been  transported  to 
Nassau  from  Hartlepool  in  the  steamer  Bahama.  No  evidence  of  this 
is  produced  by  the  United  States.  But,  if  it  were  true,  the  facts  placed 
before  the  arbitrators  by  the  United  States  themselves  clearly  prove, 
that  the  purpose,  to  which  the  Bahama's  cargo  was  intended  to  be  ap- 
plied, was  unknown  alike  to  the  British  government  and  to  the  officials 
of  tbe  United  States  in  England.  By  the  latter  it  was  believed  to  be 
destined  for  a  confederate  port,  and  intended  to  run  the  blockade.^  The 
Florida  herself  did,  in  fact,  go  into  and  re-issue  from  a  confederate  port 
before  she  began  to  cruise  against  the  shipping  of  the  Unitod  States.* 

83.  It  has  thus  been  made  clear  that  all  the  arms  and  munitions  of 
war  which  were  sent  from  ports  within  the  Queen's  dominions,  in  order 
to  be  used  in  arming  confederate  vessels,  were  shipped  as  in  the  ordi- 
nary course  of  commerce ;  that  the  purpose  to  which  it  was  intended 
that  they  should  be  ai)plied  wa.s  not  known  to  the  British  Government 
or  its  officers ;  that  they  had  no  means  of  knowing,  and  no  reason  even 
to  suspect  it.  Hence,  if  it  were  possible  to  suppose  that  any  obligation 
to  prevent  the  shipment  of  carj^oes  destined  for  such  a  purpose  was  in- 
cumbent on  a  neutral  Government,  there  wojild  be  no  just  ground  for 
imputing  negligence  on  that  score  to  the  Government  of  Great  Britain. 
But  no  such  obligation  in  fact  existed  ;  and  the  facts  above  stated  ap- 
pear to  show  that  the  etl'ectual  discharge  of  any  such  obligation  would 
ordinarily  be  impossible  to  a  neutral  Government,  unless  by  the  total  and 
iudiscriniinate  prohibition  of  the  export  of  arms  and  munitions  of  war. 
The  second  rule  of  the  treaty  of  Washington  is  directed,  not  jigainst 
proceedings  of  this  kind,  but  against  the  use  of  neutral  territory  as  a 
base  of  operations  for  naval  warfare,  or  for  the  renewal  or  augmentation 
of  military  supplies  or  arms  to  ships  employed,  or  intendeil  to  be  em- 
ployed, in  the  war  service  of  a  belligerent,  with  the  consent,  or  by  the 
^utterance,  of  the  neutral  Government. 

'  ApiM'iulix  to  British  Case,  vol.  i,  p.  87. 

•  Ibid.,  vol.  i,  p.  90;  vol.  v,  p.  '20. 

^British  Ooiiut«r  Case,  p.  74;  Appendix  to  Case  of  tbe  United  States,  vol.  vi,  pp.  ^22, 

Aiipendix  to  ditto,  vol.  i,  p.  7.''. :  Case  of  the  United  States,  p. 


*■':."?;« 


*     1 


/  British  Case,  p.  67  ;  Aiipendix  to  d 
•t-'O;  Appendix  to  ditto,  vol.  iv,  p.  45? 


i^^W'^WfP 


288 


HKITISH    AFiGLMKNT. 


84.  The  tribunal  may  be  here  remimled  that  even  tlie  fact  that  any 
particuhir  vessel  was  freighted  with  arms  and  munitions  of  war  woulil 
not  of  necessity  be  known  to  the  officers  of  the  customs  before  hor  dp 
parture,  and  would  probably  be  unknown  to  them  if  the  ])arti(!s  con 
cerned  in  the  shipment  had  any  motive  whatever  for  not  disclosing  it. 
Unless  where  an  exemption  was  claimed  from  customs  duties  otherwise 
payable,  or  a  remission  of  import  duties  already  i>aid,  the  law  did  not 
require  that  any  statement  or  specification  of  the  particulars  of  any 
cargo  should  be  furnished  to  the  officers  of  the  revenue  before  the  saii- 
ing  of  a  ship.  The  specifications,  being  required  only  for  the  coinpila 
tion  of  the  statistical  returns  from  the  various  ports,  migjjt  be  furnished 
at  any  time  within  six  days  after  dearfince.  Nor  were  there  any  means 
of  ascertaining,  otherwise  than  by  the  statement  of  the  master  or  owner, 
to  what  port  a  vessel  was  destined,  or  of  guarding  against  the  contin 
gency  that,  having  cleared  for  a  specified  destination,  she  might  chaiific 
her  course  when  at  sea.' 

85.  It  is  suggested,  on  the  jiait  of  the  ITnited  States,  tiiat  the  ciews 

of  all  or  some  of  these  four  vessels  were  in  part  conqjosed 
rr,w"',*r,rru,„l,!,'  of  liritish  subjects.  Jf  that  fact  could  be  proved,  it  wonld 
I'lirwi" I'lni'-VsMi,  not  impose  any  liability  on  Great  Britain.    If,  indeed,  the 

liritish  government  had  given  permission  to  one  of  the  bel 
ligerents  to  enlist  men  in  Great  Britain,  for  cither  its  military  or  naval 
service,  this  might  have  given  Just  ground  for  remonstrance  and  com 
plaint,  to  the  other  belligerent,  especially  if  the  latter  were  refused  ii 
like  privilege.  JJut  it  is  not  pretended  that  anything  of  this  kind  oc 
curred.  If,  again,  a  vessel  of  war  of  either  belligerent  had  been  sufl'ered. 
b^  connivance  or  ac(|uiescence  on  the  part  of  the  authorities  of  a  Britisli 
port,  to  increase  her  strength  in  the  port  by  adding  to  her  conqilement 
of  men,  this  would  undoubtedly  have  been  a  proper  subject  of  complaint 
under  the  general  principles  of  intenuitional  law,  as  Avell  as  under  tlu- 
second  of  tlie  three  rules.  But  nothing  of  this  kind  has  been  proved. 
It  may  be  assumed  to  be  true  that,  in  the  cases  of  the  Alabama  and 
Georgia,  a  considerable  number  of  seamen  were  induced  >  leave  Eng- 
land with  an  intention,  on  the  part  of  the  persons  who  inuaced  them  to 
go,  that  they  should  afterward  be  solicited  to  enlist  in  the  naval  service 
of  the  Confederate  States,  and  that  many  of  these  did  afterward  enlist 
in  that  servive ;  and  it  may  probably  be  true  that  some  of  them  knew  or 
suspected  that  they  would  be  invited  to  do  so.  But  the  facts  show  that 
(unless,  perhaps,  in  one  or  two  individuvi  cases)  no  proposal  to  take 
service  under  the  Confederate  Government  was  made  to  them  until  they 
were  at  a  distance  from  England  ;  that  persuasion  was  then  used  to  in- 
duce them  to  .join,  by  promises  of  high  iiay  and  i>riz(>nioney ;  that  sonif 
consented  and  others  refused  ;  that  the  latter  were  sent  home,  and  the 
former  signed  fresh  articles  and  entered  into  a  new  engagement  and  a 
new  service.  In  every  case  the  same  course  appears  to  have  been  pur 
sued.  Sailors  were  hired  in  England  for  an  ordinary  mercantile  voyage. 
in  the  hope  that  they  might  afterward  be  Avon  over,  when  at  sea,  by 
large  promises,  and  by  appeals,  which  it  might  well  be  thought  wonld 
not  be  addressed  in  vain  to  men  of  careless,  roving,  adventurous  habits, 
In  fact,  however,  this  expectation  was  in  no  snmll  measure  disappointed. 
The  crew  who  went  out  on  board  the  Oreto  (afterward  the  Florida) 
lodged  complaints  before  a  nmgistrate  at  Nassau,  on  the  ground  that 
there  had  been  a  deviation  from  the  voyage  for  which  they  were  hired; 
they  thus  obtained  their  discharge  from  the  ship,  and  a  fresh  crew  were 
afterward  hired  at  Nassau,  who  refused  to  sail  because  they  had  doubts 

'  Si'o  British  Cast',  p.  57. 


BRITISH   ARGUMENT. 


289 


nhont  hor  real  character  and  itittMuled  employnient.*  The  crew  by  which 
he  was  manned  (hiring  her  cruise  was  hired  at  Mol)ih^^  With  res]>ect 
to  ilie  crew  of  the  Ahibania,  it  a|)i)ears  from  Chirence  Yonjje's  atTidfi.  its, 
produced  on  the  part  of  tlie  United  States,  that,  after  the  vessel  lia<l 
put  to  sea,  he  was  directed  to  "circuhit'^  freely"  anion<>'  them  and  "in- 
duce tiiem  to  go  on  tiie  vessel "  after  she  slicmld  get  to  Terceira.'  Many 
nieii  when,  after  arriving  at  Terceira  the  new  |)roi)osal  to  Join  was  ac- 
tually made  to  them  ret'ns^'d,  and  were  sent  back  to  England.'  Of  the 
seamen  who  went  on  board  of  the  Jai)an  (afterward  the  (leorgia)  and 
the  xVlar,  a  considerable  proportion — twenty-four  at  the  least — refused 
ill  like  nuinner  to  join  the  <!onfcderate  service,  when  invited  to  do  so, 
the  vessels  being  then  in  French  waters.^  Of  the  crew  of  the  Sea  King 
(afterwards  the  Shenandoah)  only  three  or  four  yielded  ;  and  these,  it 
was  stated,  were  under  the  influence  of  licpior  Forty-two  refused,  al- 
though tempted  by  the  most  profuse  offers  and  far  from  home.'' 

8(i.  It  is  clear  that  acts  and  contrivances  of  this  kind  on  the  part  of  a 
belligerent,  although  the  netral  power  may  regard  them  as  injurious  to 
itself,  and  as  tending  to  endanger  its  friendly  relations  with  the  other 
belligerent,  do  not,  even  when  partially  successful,  give  to  the  latter 
any  claim  against  the  neutral. 

87.  It  came  to  the  knowledge  of  the  British  (lovernment  during  the 
civil  war  that  endeavors  were  being  made  to  induce  British  subjects 
to  jjo  in  considerable  n numbers  to  the  United  States,  nominally  to  be 
eiii])loyed  in  making  railways  or  other  works  of  a  like  kind,  l>at  really 
with  the  intention  that,  when  there,  they  should  enlist  in  the  United 
States  Army.  Her  ."Majesty's  Government  does  not  attribute  these  endeav- 
ors to  the  (irovernment  of  the  United  States,  nor  hold  that  Government 
responsible  for  them.  They  were  nnide,  however,  and  they  partiall;^" 
stieeeeded,  as  was  known  to  and  admitted  by  the  Government  of  the 
United  States.'^ 

88.  Efforts  have  been  made,  on  the  part  of  the  United  States,  to  prove 
that  the  Shenandoah  was  enabled  to  ship  a  considerable  addition  to  her 
new  at  Melbourne  by  the  connivance  or  culpable  negligence  of  the 
lolonial  authorities.  This  charge  is  one  which,  from  its  nature,  would 
r('(iuire  to  be  supported  by  the  clearest  evidence.  But  it  has  not  been 
so  .substantiated  ;  on  the  contrary,  it  is  disproved  by  the  facts. 

The  accusations  on  this  head,  contained  in  tiie  Case  of  the  United 
States,  have  already  been  answered  in  detail  in  the  British  (Jouiiter 
Case,  (pages  1)4-100,)  to  which  Her  ^Majesty's  government  would  refer  the 
Tribunal  as  attbrding  also  a  sulUcient  rei»ly  to  the  further  observations 
eoutaiued  in  the  Counter  Case  of  the  United  States.  The  physical  ob- 
stacles which  delayed  the  repairs  of  the   Sheuaiuloah   have  been  fully 

'  Biitisli  Case,  p.  6.^ ;  Api>oiHlix  to  ditto,  vol.  i,  pp.  46,  49 ;  Appendix  to  (Jnaa  of  tlio 
I'liitt'd  States,  vol.  vi,  p.  '204. 

■British  Case,  pp.  67,  78;  Appendix  to  ditto,  vol.  i,  pp.  116-12.");  llritiHli  Connter 
Ciisf,  p.  7i>. 

'Ai)pendixto  British  Case,  v(d.  i,  p.  'i20;  vol.  ii,  p.  'iil ;  Appendix  to  Case  of  I'liited 
Stiites,  vol.  vi,  pp.  4:i2,  4:i8. 

^See  l{t'dd«!n's  alJidavit ;  Appendix  to  British  Case,  vol.  i,  p.  'iiO ;  Appendix  to  Cas(!  of 
tlu'  Tuited  .States,  v<d.  vi,  p.  42:$. 

"^Sfc  Atlidavits  of  Thoniiisoii  and  Mahon;  App'.Midix  to  British  Case,  V(d.  i,  \t[i.  4l\J- 
^1");  Appendix  to  Case  of  the  United  .States,  vol.  vi,  [ip.  iMl-.'d.'). 

'  Hiitisli  Case,  pi>.  1:?6-I4l ;  Apjieudix  to  ditto,  vol.  i,  pp.  477-481,  48.j-41)0 ;  Appendix 
to  Cas(!  of  the  United  States,  vol.  vi,  pp.  r)6l)-.')71. 

"Appendix  to  Case  of  the  United  .States,  vol.  i.  pp.  "270,  '281,  Wi:i,  .j90;  vol.  ii.  pp.  406, 
^tiO ;  vol.  iv,  p.  '248. 

19  C 


'S/ 


tr-^ 


\¥    . 


290 


BUITISH   ARGUMENT. 


cxplaiiu'd',  and  tlie  poculiiir  (lifticulties  muU'r  wiiicli  tlie  Colonial  antlior- 
itie.s  lalioiod,  ivoin  the  absence  of  any  JJritisli  vessel  of  war,  and  the 
impossibility  of  exercising  an  efficient  control  over  tliesliii)nient  of  iiieu 
Ironi  diflerent  parts  of  the  Bay.  On  the  other  hand,  the  iictive  vigilmice 
enjoined  upon  and  exerc-ised  by  the  authorities,  the  exaiuination  of  the 
vessel  by  (roveinnient  officers  belore  jiennission  to  repair  was  };iveii,the 
daily  rejtorts  furnished  to  the  (Governor  of  the  i)royress  otthe  repairs,  the 
striufient  course  adopted  toward  the  coinnuinderof  tlu^  vessel  in  order  to 
obtain  the  arrest  of  the  men  who  were  discovered  to  have  gone  on  board 
of  her,  and  the  piosecution  and  i)nnishment  of  those  of  them  who  were 
amenable  to  the  law,  all  show  the  determination  of  the  Governor  and 
his  advisers  to  i)i'event  any  violation  of  neutrality  wso  far  as  it  was  in 
tlu  ir  power  to  do  so.  Sucli  was,  in  fact,  the  impression  originally  made 
by  the  report  of  their  ])roceedings  upon  the  mind  of  Mr.  Adams,  as  sliowii 
by  his  letter  to  .Mr.  Seward  of  the  12th  April,  18(5.j.- 

Tlie  United  States  have,  in  their  Counter  Case,  (Sec.  VIII,  par.  4.) 
questioned  the  accuracy  of  the  observations  made  at  page  KiO  of  the 
British  Case  as  to  thecomi>osition  of  the  crew  of  the  Shenandoah,  and 
as  to  the  statements  u'ade  by  a  man  mimed  Temple  on  the  subject.  The 
correspondenc-e  which  took  jdace  at  the  time  on  this  point  will  be  found 
at  pages  (!!>l-724  of  the  tirst  volume  of  the  Appendix  to  the  British  Case, 
and  will,  Her  ^lajesty's  (lovernment  believes,  amply  bear  out  all  tluu 
has  been  said  in  the  British  Case.  It  will  be  seen  from  the  list  an- 
nexed to  Temple's  athdaxit  (page  701)  that  the  composition  of  the  crew 
was  as  stated,  and  from  the  police  re[)ort  (page  714)  that  Temple  hiniselt' 
admitted  that  a  consideralde  portion  of  his  own  allidavit  was  false. 

81).  Stress  has  been  laid,  in  the  Case  of  the  United  States,  on  the 
charac  a.  to  Cm   allcgcd  tjicts  tluit  tlic  vcsscls  in  question  were  built  ai"l  pre- 
Gl™fi\'ri['™hrw'','  pared  for  sea  under  the  su[)(!i'inteiulence  of  Bullock,  who 
""'"'""  was  an  agent  of  the  Confederate  Government,  or  soineotiiei 

agent  of  that  Government;  that  the  armament  sent  out  for  them  was 
alvso  procured  and  sent  out  uiuler  Bullock's  orders,  and  that  the  olUeers 
and  men  drew  their  i)ay  through  a  tirm  of  merchants  in  Llverjjool. 

Although  nu)stof  the  evidence  adduced  in  support  of  these  allegations 
is  of  little  value,  and  they  rest  even  now,  to  a  considerable  extent,  on 
conjecture  and  suspicion,  there  is  little  doubt  that,  as  to  some  of  the 
vessels,  they  are  substantially  true.  But  it  cannot  be  admitted  that,  it 
true,  they  impose  a  liability  on  CJreat  Britain. 

90.  it  is  to  be  observed,  in  the  lirst  place,  that  the  information  on 
which  the  Uniteil  States  now  rely  was  not,  at  the  times  with  reference 
to  whi(di  the  question  of  due  diligence  has  to  be  determitied,  in  the  pos- 
session of  the  British  (Jovernment ;  much  of  it  had  iu)t  even  been  ae 
quired  by  the  (iovernmeut  of  the  United  States.  Of  Bullock's  employ 
ment,  and  of  the  facts  that  he  was  an  agent  of  the  Confederate  Govern 
meat,  and  that  he  had  anything  to  do  with  the  contract  for  buildinjitiie 
Alabama,  the  British  Government,  up  to  the  tiuie  of  the  departure  of 
the  Alabauui,  and  until  long  afterward,  had  no  proof  beyond  such 
statements — unsu[>ported  by  anything  which  could  properly  be  calh'd 
evidence — as  were  contained  in  the  depositions  furnished  by  Mr.  Dutlkn 
and  Mr.  Adams,  in  relation  to  that  vessel,  a  few  days  before  she  sailed. 

'  The  \\i\\wv  icforiL'd  to  in  the  Coiuitor  Case  of  tli«3  United  States,  as  showing'  tliin 
tlie  lepairs  (o  the  niacliiuciy  of  tlie  vessel  were  not.  emMineuce<l  until  she  liail  '"i" 
fonrteeu  days  in  pert,  {jfives  also  tiio  reason  of  the  delay,  viz,  that  they  could  not  1"' 
I'tleetetl  until  the  vessel  was  place«l  upon  the  slip.  Tliis  latter  operation  h;itl  I'l't^'" 
delayi  (1  by  the  state  of  the  weather  and  tides.    Appendix  to  liritish  Case,  vol.  i.  pi' 

•  A])pendix  to  Case  of  the  United  States,  vol.  i,  pp.  041,  642. 

»  British  Case,  pp.  fc7-«U,  U2,  95 ;  Appendix  to  ditto,  vol.  i,  pp.  189-192,  195. 


BRITISH    ARGUMENT. 


201 


Bullock'.s  transactions  were  surroniuled  with  tlie  ntinost  secrecy,  anil 
screened  by  the  employment  of  intermediate  agents ;  and  wliat  the  Gov- 
ernment of  the  United  States  knew  or  suspected  about  them  appears  to 
have  beeti  derived  from  reports  which  they  wore  unable  to  autlu'uti(^ate. 
After  the  doi)artnre  of  the  Alabama,  Bullock  does  not  apju'ar  to  have 
succeeded  in  sending  to  sea  a  single  vessel  inteiuled  for  a  Confederate 
cniiser.  After  the  arrest  of  the  AU^xandra  and  the  defeat  of  the  scheme 
for  procuring  the  two  rams,  he  seems  to  liave  tJ'aiisferred  his  operations 
to  France,  wliere  he  contracte<l  for  six  iron-chids,  and  su(!ceeded  in  ob- 
taining one.'  It  does  not  appear,  nor  does  the  British  (Jovernnient  un- 
derstand tiie  United  States  to  allege,  that  he  had  anything  to  <lo  with 
the  Georgia  or  Shenandoah. 

91.  It  must  be  observed,  further,  tiiat  schemes  and  operations,  such 
as  are  attributed  to  Bullock,  can  in  England  be  repressed  by  the  inter- 
position of  the  Executive,  only  when  and  so  far  as  they  take  the  form 
of  actual  infringements  of  the  law,  Tiie  law  selects  tliose  acts  whicli  it 
is  practi(!able  and  expedient  to  prohibit  and  punish  as  criuiiual,  and 
these  it  prolubits  and  punishes;  the  Executive  can  act  only  by  enforcing 
tiie  law,  and  it  has  not  the  power  to  expel  from  its  territory  persons 
whose  pnxreedings  it  may  disapprove,  or  whom  it  may  regard  with  sus- 
picion. Nor  does  Her  Majesty's  Goxernment  understand  that  such  a 
power  exists  in  the  United  States.  The  numerous  expeditions  which 
have  been  titted  out  in  the  United  States  against  friendly  countries  have 
heeii  organized  systematically  by  persons  residing  in  the  United  States, 
sometimes  resident  there  for  that  special  purpose.  But  the  Government 
of  the  United  States  has  admitted  no  liability  on  that  account,-  and  has 
not  interfered,  unless  or  until  it  had  reason  to  believe  that  the  law  was 
being  broken.''  The  iiayment  of  money  to  the  families  or  relatives  of 
men  serving  in  Confederate  ships  was  not  a  breach  of  the  law.  On  the 
other  hand,  enlisting  men  for  that  service,  or  inducing  them  to  go  abroad 
for  that  purpose,  was  an  offense ;  and,  wiieuever  evidence  of  this  could 
be  obtained,  prosecutions  were  instituted  against  the  persons  incrimi- 
iiated.^ 

In  a  letter,  dated  January  27,  1805,  from  Mr.  Morse,  the  Consul  of 
tiie  United  States  i»  Loiulon,  communicated  by  Mr,  Adams  to  Earl 
Knssell,  mention  was  made  of  the  "  head  of  the  Confederate  Navy  I)e- 
pnrtnient  in  Kiirope,  Commodore  Barron."^  This  ollicer  was  resident  at 
Paris,  from  whence  he  api)ears  to  have  issued  instructions  to  otTicers 
coniinandiiig  Confederate  slii[)s  of  war.  A  letter  of  instructions  from 
him  to  the  Commander  of  the  Florida,  dated  Paris,  2.Jtii  January,  1S(>4, 
was  found  on  board  of  that  vessel  when  ca[)tured  at  13ahia."     Her  Bri- 

'  Aiipeiulix  to  Counter  Caso  of  the  United  States,  pp.  rioO,  857  ;  British  Coiuiter  Cease, 

p.  m. 

-  In  ii  ciirrospoiidenec  which  has  recently  passed  between  the  Governments  of  tlu; 
Uniti'd  Stati's  and  of  Ni<%ara}i;na,  aiid  wiiieh  lias  been  published  in  tlu;  Ollicial  (Jazi'tte 
oftbf  latter  Kei)ublic,  the  United  States  have  distinctly  declined  to  aj^ree  to  the  refer- 
ence to  a  Coniniissiou  of  the  claims  of  Nicaraguan  citizens  arising  out  of  the  acts  of  tili- 
liiistcriiiy,' exi>editioiis  from  the  United  States,  and  the  bombarduient  of  Gnsytowii,  de- 
cliniiijr  all  responsibility  in  regard  to  these  claims,  and  stating  that,  as  regards  the  acts 
of  Walker,  the  filibustering  chief,  they  felt  conscious  that  th(\v  had  fullilh-d  all  that 
could  be  rt'iiuired  of  them,  either  by  the  laws  of  the  United  Slates  or  by  international 
law. 

^British  Counter  Case,  pp.  25-47  ;  pp.  82-85,  (note.) 

*  See  the  trial  of  Messrs.  Jones  and  Highatt.  for  enlisting  men  for  the  Georgia  ;  of  Mr. 
Kiimble,  for  eidisting  men  for  tiie  Rappahannock ;  of  Captain  Corbett,  for  enlisting  men 
fortlu!  Shenandoah  ;  of  James  Cunniugham,  Edward  and  James  Campbell,  and  Johu 
St'yiiiiiur.    Ai>pendix  to  Case  of  the  United  States,  vol.  iv,  pp.  550-C18.    ■ 

"Aitpt'iidix  to  Case  of  the  United  States,  vol.  ii,  p.  175. 

"Appendix  to  British  Case,  vol.  i,  p.  150. 


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292 


BRITISH   ARGUMENT. 


■j.t- ■  '  .'  ■ 


tannic  Majesty's  Government  is  not  aware  tbat  any  proceedings  were 
taken  against  Coniniotlore  Barron  by  the  Government  of  France. 

02.  It  wonld  be  extravajjant  to  contend  that  the  want  of  power  t()])re- 
vent  a  belli<>erent  from  havinj?  agencies  in  a  nentral  country  for  the 
purpose  of  making  mercantile  contracts  for  such  articles  ;is  if  •  ceds,  or 
for  the  payment  and  receipt  of  money  on  its  account,  (altli'  ^a  some  of 
sucli  contracts  and  ]>ayments  may  liave  been  connecte.i  with  shijis  in- 
tended  for,  or  actually  in,  its  service,)  is  equivalent  to  a  i)eiiiiissi()n 
to  that  belligerent  to  emi)loy  the  neutral  territory  as  "a  base  of  naval 
operations." 

03.  Upon  this  subject  it  seems  necessary  to  observe  that,  althon<>li.  in 
the  diplonuitic  corresjjondence,  during  the  war,  of  the  American  (lov- 
ernment  with  Mr.  Adams,  its  minister  in  (xreat  Britain,  a  id  of  ;\Ir, 
Adams  with  the  British  Government,  allegations  were  frecpiently  iiiade 
that  Great  Britain  and  her  colonies  w^re  used  as  a  "  base  of  operations' 
against  the  United  States,  that  "  war  was  virtually  carried  on,'  and 
that  hostile  "expeditions"  were  pre[)ared  from  and  in  British  ports— 
the  same  correspondence,  when  examined  with  care,  and  with  a  due 
regard  to  the  order  of  events,  proves  that  these  ami  similar  phiasM 
were  really  employed  to  describe  what  the  Government  of  the  United 
States  regarded  as  the  combined  and  aggregate  effect  of  a  groat 
variety  of  matters — the  existencic  of  Confederate  agencies  and  agents  in 
Great  Britain,  the  supplies  of  arms,  munitions  of  war,  ami  ships,  liy 
blockade-running  and  otherwise,  to  the  Confederate  .States,  and  tlie 
negotiation  of  the  Confedeiate  cotton  loan — with  each  ami  all  of  wliicli 
the  British  Government  was  continually  urged  to  interlere,  altlioii;^'!! 
(exce])t  as  to  such  of  them  as  could  be  brought  within  the  terms  of  tlie 
Foreign-Enlistment  Act)  they  were  neither  enabled  by  their  own  nnuiici- 
pal  law,  nor  bouiul  by  international  law,  to  do  so. 

04.  Of  this  statement,  the  following  proofs  will  suffice.  Gn  the  IL'tli 
May,  18G2,  Mr.  Adams  wrote  thus  to  Earl  Russell:  "  It  is  very  certain 
that  manj-  British  subje(!ts  are  now  t  ngaged  in  undertakings  of  a  liosiile 
chamdtr  to  a  foveign  ISt((te,  irhich,  tliouf/h  not  technicnlln  irit'iin  the  sfyivt 
letter  of  the  enli fitment  aety  are  as  mueh  contrary  to  its  spirit  as  if'tliei/  IcrivtJ 
war  (lireethj.  Their  nu^asures  embrace  all  the  operations  preliminary  to 
o])enly  carrying  on  war — the  su])ply  of  men,  and  shi|)s,  and  arms,  and 
money,  to  one  i)arty,  in  order  that  they  may  be  the  better  enabled  to 
overcimic  the  other;"  *  *  *  and  he,  imme<liately  afterward,  speaks 
of  "  this  virtual  lertjinp  of  war  from  the  ])orts  of  a  friendly  i)ower." 

On  the  0th  March,  1803,  (many  months  after  the  Alabama  had  com- 
menced her  cruise,)  Mr.  Seward  wrotv-  to  Mr.  Adams  on  the  subjeet  of 
a  recent  capture  by  the  Florida,  and  of  the  question,  then  under  con- 
sideration by  the  President,  whether  letters  of  n^.arque  should  be  granted 
to  protect  the  commercial  msirine  of  the  United  States  against  the  coii- 
federate  cruisers.  "  The  argument,"  he  said,  "  as  it  is  put  in  Ameiieau 
commercial  circles,  is,  that  war  is  carried  on  against  the  United  States 
by  forces  levied  and  dispatched  from  the  British  Islands,  while  the  United 
States  are  at  peace  with  Great  Britain.  I'houffh  we  may  ref/anl  ihin 
statement  of  the  case  as  extravagant,  if  not  altogether  erroneous,  it  cannot 
be  concealed  that  it  has  suflicient  appearance  of  truth  on  this  side  of  the 
ocean  to  render  it  necessary  to  ])rotect  our  commei'.'e  by  enii)l(),vi!ig 
every  possible  means  of  defense."^  This  dis])atcU  was  read  bv  Mr. 
Adams  to  Earl  Kussell  on  the  2Gtli  March,  1803.^ 

'  Appendix  to  Case  of  the  IJnitctl  States,  vol.  i,  p,  6(53. 
« Ibid.,  p.  570.  3ii,id.,p.  581. 


BRITISH    ARGUMENT. 


293 


In  replying  to  tliose  and  similar  letters,  the  distinction  between  what 
liiid  actually  been  done,  and  a  virtual  carryinfv  on  of  war  from  (ireat 
Britain,  or  tlie  use  of  British  territory  a.s  h  b;.,,^:  of  warlike  ojierations, 
was  well  i)ointed  out  by  Earl  Kusseli,  in  letters  dated  the  \'it\\  June, 
18(i2,  27th  March,  18(J;{,  and  2d  April,  ISd.'i;'  at  the  same  time  that  he 
declared  the  determination  of  the  British  (lovernnu'iil  to  use  all  the 
means  in  its  power  to  prevent  any  breaidies  of  the  Foreifju-Enlistmeut 
Act.  The  ftood  faith  with  which  those  decdarations  were  acte«l  on  was 
on  many  subsequent  occasions  acknowledjicd. 

Mr.  Adams,  on  the  (Ith  of  April,  ISO;},  with  reference  to  certain  Amer- 
ican authoritUis  which  had  been  ai)pealed  to  l)y  Earl  Hussdl  and  the 
soundness  of  which  he  (^Er.  Adams)  admitted,  thus  put  his  arf»tnnent : 
"Tiie  sale  and  transfer,  by  a  neutral,  of  arms,  of  muniti()ns  t>f  war,  and 
even  of  vessels  of  war,  to  a  hellificrent  connlnj,  not  subject  to  blockade  at 
fhe  time,  as  a  piirelij  commercial  transaction,  is  decided  hi/  these  anthorifies 
not  to  he  unlauful.  They  go  not  a  step  furtlnu- ;  and  preeiselfi  to  that 
extent  I  have  myself  taken  nociception  to  the  doctrine.  But  tlie  case  is 
changed  when  a  belligerent  is  shown  to  be  taking  measures  to  establish 
a  system  of  operations  in  a  neutral  country,  with  the  intent  to  carry  on 
a  war  from  its  ports  univh  in  the  same  way  that  it  would  (h),  if  it  could, 
ti'oniitsown  territory;  when  it  ai)poiuts  agents  residing  in  that  country 
for  the  purpose  of  borrowing  nioney  to  be  applied  to  the  htting  out  of 
hostile  armaments  in  those  very  i)orts,  and  when  it  appoints  and  ■  ids 
out  agents  to  superinteu<l  in  those  ])orts  the  constructing,  equipping, 
and  arming  siiips  of  waT,  as  well  as  the  eidisting  of  the  subjects  of  the 
neutral  country,  to  issue  forth  for  the  purjjose  of  carrying  on  hostilities 
on  the  ocean." ^ 

The  doctrine  suggested  in  this  letter,  that  the  existence  of  a  blockade 
gives  to  a  trade  in  articles  contraband  of  war  with  the  blockaded  bel- 
ligerent a  character  different,  in  the  view  of  iitternational  law,  (so  far 
as  the  duties  of  a  neutral  GovernnuMit  are  concerne<l,)  from  that  which 
it  would  otherwise  possess,  is  (as  Her  Majesty's  (rovernmeiit  conceives) 
entirely  unwarranted,  either  by  reason  or  by  authority. 

On  the  14th  November,  l.S(>;{,  Mr.  Seward,  communicating  to  Mr. 
Adams  information  which  he  had  received  from  the  C'anadian  authori- 
ties, as  to  certain  designs  of  emigrant  insurgents  in  Canada  against  the 
teiritory  of  the  Uuited  States,  and  expressing  the  satisfatttion  of  the 
President  at  the  friendly  jn'oceedings  of  those  authorities,  fcdlowed  up 
a  suggestion  as  to  some  possible  amendments  of  the  laws  of  the  two 
nations,  by  the  inquiry:  "'Could  we  possibly  avoid  contlicts  oetween 
the  two  countries,  (f  British  shores  or  prorincfs  .should,  throutjh  any  mis- 
under  standing,  he  sufered  to  become  bases  for  military  and  naval  operations 
against  the  United  tStatesf^  He  then,  ai)parently,  still  (;onsidered  the 
suggestion  that  they  had  already  bec^ome  so,  (in  the  language  of  his 
former  letter  of  the  0th  March,  I8()*i,)  as  "extravagant,  if  not  alto- 
getiier  erroneous."  Yet,  on  the  (Ith  of  January,  l.Sii4,  he  wrote  to  Mr. 
Adams  as  if  certain  papers,  showing  "that  the  belligerents  liave  a 
regularly  constituted  treasury  an«l  counting  house,  with  agents  in  Lon- 
don for  paying  the  wages  of  the  British  subjec^ts  who  are  eidisted  there 
in  this  nefarious  service,''  were  sutiicient  to  "  prove,  beyond  a  possible 
doubt,  that  a  sys-  Mnatic  naval  war  has  been  carried  on  for  more  than  a 
year,  by  subjects  of  Her  Majesty,  from  Ihe  British  Islands  as  a  base ;" 
and  that,  by  meaus  of  this  evidence,  the  difliculty  i)reviously  felt  by 
Her  Majesty's  Government  in  acting  upon  remonstrances,  which  were 

'  ApixMulix  to  Case  of  Uuitetl  States,  vol.  i,  pp.  (5(5').  r>rt4,  589. 
^  Ibid.,  pp.  591,  592.  » Ibid.,  p.  57G. 


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294 


BRITISH    ARGUMENT. 


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"lipid  inconclusive  and  unsatisfactory,  because  it  was  said  that  they 
were  uot  attoiulcd  with  such  clear,  direct,  and  conclusive  proofs  of  the 
ort'enses  complained  of  as  would  enable  the  Governnient  to  arrest  tlie 
offenders,  iind  apply  judicial  correction  to  the  practices  indicated,"  had 
been  "  fully  and  completely  renu)ved." ' 

This  was  followed  up,  on  the  11th  of  March,  1804,  by  another  letter 
froiu  Mr.  Seward,  in  which  lie  said:  ^^  It  irnx  .seen,  as  wethoi({/lif,  cdrhj  in 
the  month  of  December  la.st,  that  Brithh  ports,  at  home  and  al>roa<l,  ircre 
hecominff  a  base  for  operations,  hostile  and  danj^erous  to  the  United 
States;"-  and,  on  the  lid  of  'July,  1.S04,  by  a  further  letter,  sayin^»'  (with 
manifest  referen<;e  to  the  trade  of  blockade-runners,  carried  on  from  the 
Bahamas  and  elsewere,)  •'  You  <!an  hardly  omit  to  inform  Earl  iJnssell 
that  the  whole  of  tlu^  IJritish  West  India  Islands  are  practically  used 
by  our  insiirj'ent  enemies  as  a  base  for  hostile  operations  aj^ainst  the 
United  States;  and  the  protits  derived  by  liritish  subjects  from  tliese 
enterprises  are  avowed  in  every  i)art  of  the  British  empire  with  as  much 
freedom,  and  as  mucli  satisfaction,  as  if  the  operations  were  in  con- 
formity with  international  law,  and  with  treaties."  ' 

It  is  satisfactory  to  lier  Majesty's  Govern nuMit  to  be  able  to  add  to 
these  extracts  another,  from  a  letter  written  by  Mr.  Seward  on  the  28th 
of  the  same  month  of  July,  18(51:  'vDurinj>'  the  latter  part  of  the  year 
18(J;i,  the  (iovernnuMit  of  Great  Britain  manifested  a  decided  determina- 
tion, not  only  to  avoid  intervention,  but  also  to  prevent  unlawful  naval 
intervention  by  British  subjects.  This  nmnifestation  i)roduced  a  very 
happy  effect  in  the  United  States."^ 

{)'>.  What  was,  from  time  to  time,  aetually  and  successfully  done  by 
Great  Britain  to  prevent  any  unlawful  ecpiipments,  orauji»inentation  of 
the  naval  force  of  the  Coniederate  Government  within  her  territory,  has 
been  sutliciently  stated  in  the  British  Case.^  The  Arbitrators  also  know 
in  what  instances,  and  under  what  circumstances,  the  vigilance  of  ller 
Majesty's  Government  is  said  to  have  been  insutiicient,  or  to  have  been 
elude<l.  But  a  still  nu)re  adecpuite  conception  of  the  difference, 
between  the  plans  which,  according'  to  the  infornmtion  from  time  to  time 
obtained  by  the  agents  of  the  United  States,  were  formed  or  supposed 
to  have  been  formed,  for  obtaining  ships  useful  for  war  purposes  of 
the  Confederate  States  from  British  territory,  and  the  actual  results  of 
those  plans,  (and,  therefore,  a  more  adequate  conception  of  the  general 
etlicacy  of  the  attitu«le  assumed  aiul  tiie  means  used  by  the  British 
Government  for  the  maintenance  of  ller  Majesty's  neutrality.)  may  be 
arrived  at  from  some  other  parts  of  the  same  correspondence,  contained 
in  the  first  volume  of  the  Api)endix  to  the  Case  of  the  United  States. 

90.  In  August,  1801,  Mr.  Seward  heard,  through  what  he  considered 
"a  very  direct  channel,"  that  Captain  Bullock  had  "contracted  for  ten 
iron  steauu^rs — gun-boats — all  to  be  armed,  at  8750,000  lor  all,  and  all 
to  come  out  as  war-vessels.""  In  February,  1802,  he  received  informa- 
tion from  Mr.  Morse,  tlie  United  States  Consul  in  London,  that  the  Con- 
federate Agents  in  London  and  Liverpool  were  "engaged  in  preparing 
a  whole  Jtect  of  piratical  ])rivateers,"  to  depredate  on  American  com- 
merce in  European  waters."  Mr.  Adams  had  heard  in  Ai)ril,  1802,  that 
"as  many  as  fifteen  vessels"  were  preparing  to  sail  from  British  waters 
"  to  assist  theinsurgeuts.""  On  the  28tU  of  April,  1802,  Mr.  Seward 
wrote :  "  Captain  Bullock,  of  Georgia,  is  understood  to  have  written 

'  Appendix  to  Cuso  of  tbe  United  States,  vol.  i,  p  609. 

2  Ibid.,  p.  :ir)8.  a  Ibid.,  p.  ()i:j. 

*  Ibid,  p.  508.  ^  British  Case,  pp.  :U-r)0. 

"Appendix  to  Case  of  the  United  States,  vol.  i,  pp.  .'">17,  ^>l'*. 
1 1bid.,  pp.  344, 345.  » Ibid.,  p.  240. 


BRITISH   ARGUMENT. 


295 


that  lie  has  five  steamers  built,  or  bouj^ht,  armed,  and  supplied  with 
iiinterial  of  war  in  I'^nniand,  which  arc  now  abont  bcins,  or  arc  on  their 
way  to  aid  the  insnr;;ents,"'  In  May,  lS<i2,  Mr.  I)udl(\v,  tlui  United 
States  Consnl  at  Liverpool,  <iavc  intornjati<»n  to  Mr.  Adams  and  Mr. 
Morse  of  "the  purcliase  of  tliirti/  steamers,  for  the  pnrpnue  of  muUimj  a 
combined  attack  on  our  coasts^-  On  the  .Stli  Sejittimber,  IS(L*,  Mr.  Seward 
wrote :  "We  hear,  ollicially  and  unoMi(!ially,  of  ••reat  naval  preparations 
wliicli  are  on  foot  in  British  and  other  forei;>n  ports,  under  cover  of 
neutrality,  to  j^ive  the  insiir<;ents  a  naval  fonje.  Amou;;"  tiie  reports  is 
one  that  a  naval  areiament  is  il'liii^"  out  in  Eusianti  Lo  lay  New  Vork 
under  contribution."'  In  certain  intercepted  letters  of  Confederate 
A<;ents,  of  ATif>nst  and  October,  l.S(>2,  it  was  stated  that  a  person  (an 
American)  named  8aii<lers  had  contracted  with  the  Naval  I)ei)artment 
of  the  Confederate  States  for  .v/.r  iron-elad  steamers  fi-om  Knjiland;^ 
with  respect  to  which  he  said,  "  fjreat  skill  and  diplomacy  must  be  ex- 
ercised to  avoid  the  interference'  of  European  (iovernments."''  On  the 
oOth  December,  1802,  Mr.  J^udley  informed  Mr.  Seward  of  the  prepara- 
tion of  a  most  formidable  ram  at  (Tlas<>'ow,  and  two  iron-clad  rams  in 
London,  and  three  other  snspecte<l  vessels,  (besides  tlu^  Alexandra,  and 
the  rams  at  Birkenhead.)''  In  April,  l.sd;),  information  came  of  pri- 
vateers tittinjj  out  in  Vancouver's  Island:'  and  at  a  later  date,  Feb- 
ruary, 1805,  of  an  expedition  a,t>ainst  New  Vork,  to  consist  of  '•'\fiee  iron- 
clods,  on  their  way  from  French  and  En<;'lish  ports,"  with  the  aid  of 
"live  blockade-runnin}^"  steamers,  to  be  converted  into  privateers, armed 
with  two  j:;uns  each."" 

1)7.  This  series  of  reported  designs,  whi(di  were  never  accomi)lished,at 
once  proves  how  impossible  it  was  for  the  iirilish  authorities  to  act  in- 
discriminately, and  without  evidence,  upon  every  alarmiuf''  report  and 
rumor  which  mij«ht  be  conveyed  to  them  by  the  A}»ents  of  the  United 
States  in  this  country,  and  shows  what  mi,i;ht  actually  have  been  done, 
if  those  authorities  had  really  been  careless  or  ueyKjient  as  to  the  en- 
forcement of  the  law,  or  had  really  permitted  ller  3Iajesty's  territory 
to  be  used  as  a  base  of  hostile  operations  ajiainst  the  United  States.  If 
such  designs  were  formed,  Mr.  Adams  merely  spoke  the  truth,  when, 
writing  of  the  Confederacy  on  2lst  of  July,  1804,  he  said  "its  audacious 
attempts  to  organize  a  navy  in  this  kingdom  (Great  Britain) /tat't;  utterly 
failedJ"' 

!>8.  An  answer  has  been  given  to  the  complaints  which  the  United 
States  make  against  Great  Britain  in  respect  of  the  alleged 
e(iuipment  in  British  ports  of  vessels  intended  for  the  Con-  (■n,Sr'at'!-, r..V'. '-! 
federate  service,  and  of  the  original  departure  from  British  w'en''n"t'«lL',r'mV 
territory  of  vessels  alleged  to  have  been  specially  adapted 
with  in  it  to  warlike  use.  But  it  is  further  urge<l,  on  the  part  of  the 
United  States,  that  the  four  vessels  now  in  <piestion,  (the  Florida,  Ala- 
bama, Georgia,  and  Shenandoah,)  after  having  been  procured  from 
Britisli  ports  by  agents  of  the  Confederate  Government,  and  converted 
iuto  ships  of  war,  entered,  whilst  cruising  in  that  character,  several 
ports  within  the  Colonial  possessions  of  Great  Britain;  and  it  is  con- 
tended that,  when  that  occurred,  the  Britisli  authorities  were  under  an 
obligation  to  seize  and  detain  them  ;  and  that  for  the  non-performance 
of  this  obligation  Gre.at  Britain  is  liable  to  the  United  States. 

'Aijpeudix  to  Case  of  the  Uiiite<l  States,  vol.  i,  p.  '.H'.i. 
^  Ihid.,  p.  G49.  « Ibid.,  p.  (if)!. 


«Ibi(l.,p.  .'i42. 
*Ibicl.,  p.  573. 
6Ibid.,  p.  571. 


'  Ibid.,  p.  5<JG. 
*•  Ibid.,  p.  0:55. 
"  Ibid.,  p.  507. 


-u  - 


29G 


BRITISH    ARGUMENT. 


:W»- 


¥ 


IM).  Tl><»  (loinands  of  tin";  Uiiit(Hl  StatoH  upon  (rroat  Britain  duriiif;  tlip 
Avar  wove,  as  to  many  thinji'.s,  <>r('atl.v  in  t>x«n's.s  of  wliat  could  bo  Jnstilicd 
l>y  international  law;  but  an  obli<iation  liko  tiiis  was  never  su}>:<»est('(|. 
except  upon  the  view  tiiat  all  Confederate  slnps  of  war  and  privateers, 
wliicli  niif>lit  be  found  upon  tiu'  oijcari,  ouj^ht  to  b(^  treated  as  pirates, 
and  denied  any  bellij>erent  eliara(!ter  or  belligerent  ripjlits. 

JOO,  It  rests  witli  the  Uniti'd  States,  which  assert  this  oblij^ation,  to 
]>rove  that  ''  existed.  They  have  atteinpteil  to  support  it  by  puttin<;ii 
forced  interpretation  on  oneof  tln^  clauses  in  the  tirst  of  the  thn'e  Kules— 
an  interpretation  jdainly  at  variance  with  its  natural  and  obvious  mean- 
iny.  If  the  sense  thus  ascrilted  to  tin*  iiule  had  been  its  true  sense,  it 
could  have  a])i)lied  only  to  vessels  which  could  be  proved  to  have  been 
specially  adai)ted  within  JJritish  territory  to  warlike  use,  a  des(!riptioii 
which  niijiht  includi;  Uni  Alabama,  but  could  not  possibly  in(;lude  the 
Georfi'ia  or  Shenandoah.  To  these,  therefore,  the  rule,  even  if  con- 
strued in  this  strained  and  unnatural  inanner,  could  not  ai>ply.  J>iit 
the  reasons  f>iven  in  the  JJritish  Counter  (Jase  (Part  II,  ]).  17)  lor  alto- 
{iCtlu'r  rejectinj^'  this  construction,  which  was  not  at  the  tinut  within  tlu' 
contem]>lation  of  the  hij^h  contractinf*'  i)arties,  and  is  wholly  repudiated 
l)y  (ireat  Ibitain,  are,  in  the  view  of  the  Jbitish  (iovernment,  conclusive, 

Ibl.  That  the  aryument  of  the  United  Sta'  ■  on  this  i>oint  is  not  only 
unsui)ported  by  the  luinciples  whi(!h  have  hitherto  jj;overned  the  ad- 
niissn)n  of  public  ships  of  war  into  neutral  ports,  but  in  direct  conilict 
Avith  those  principles,  has  likewise  been  shown  in  the  Counter  Case  ol 
(Ireat  Ibitain,  (Part  JI,  i)p.  18-20.)  The  j?eneral  principle  was  there 
stated  as  follows : 

A  vessel  coiiiinissioned  as  a  ])iildic  sliip  of  war,  eiitciinj;  a  Corf.'ifj;!!  ]iort,  is  n  ])oitioii 
of  tlio  naval  force  of  the  rJovi'Viniieiit  by  wliicli  s}i(>  is  coniiiiissioiu'd,  coiiniiaiKlcil  1)\ 
its  oilifcis,  and  »lis])layiiifi  tlie  cnsio-ns  of  its  initlioritv.  Any  act  of  foj'et*  dircctccl 
aj:ainst  lier  (nnlcss  to  i)ifV('nt  oricix'l  afi<i;ifssion,  or  foni)tcl  lui'  todepai't  after  iiaviii^' 
bi'fii  i('i|iiir(',d  to  do  so  l)y  eoinpctcnt  autiiority)  would  be  directed  ii<:;ainst  litsr  (iovern- 
ment, and  would  at  tlie  same  linu',  if  done  witliout  ])revious  warniuj;',  i>e  an  infractinn 
of  a  reco;xnizcd  understandinjj,  on  the  faith  of  which  she  entered,  and  on  thi^  oliscrv- 
ance  of  which  she  ha<l  a  rii;ht  to  rely.  If,  while  in  neutial  wiiters,  she  commits  any 
violation  of  neutrality  or  otln'r  otfense  af;ainst  the  neutral,  force  nniy  uiiiloul)te(lly  lie 
empIoytMl,  in  any  way  which  may  l)t>  necessary,  in  order  to  ju'cvent  or  arrest  the  un- 
lawful act,  and  to  eomjiel  her  dejiarture.  lint  redi'ess  on<;ht  not  to  be  sou<;ht  against 
the  sliip  herself:  it  should  be  souj;ht,  if  needful,  ajjfiiinst  her  Oovenmient.  .(  J'nriUm. 
this  is  true  if  \\w.  otfense,  weie  committed  before  slu^  jirrivcd  at  the  ni'Utr.'il  |i(iit. 
Thus,  of  the  violations  of  neutrality  coinniitted  durin;;'  tlie  war  the  j'rossest  antl  must 
thifirant  by  fai'  was  that  iierjictrattMl  by  tlu^  Wachusett  in  the  harbor  of  Hahia,  Tin- 
IJrazili.'in  authorities  would  have  l)een  amjily  Justilied  in  lirin<;'  on  tliat  v<'ssel  wliilc 
eiiiiayed  in  the  act,  and  siukinjj;  her  if  necessary.  If  she  had  aft<'rward  ])resentc(l  lici- 
seif  in  a  Hia/.ilian  Jtort,  they  would  doubtless  have  refused  her  admission  ;  l)ut  tlu'v 
would  have  lijihlly  abstained,  even  'on  such  provocation,  from  seiziiifr  anil  detainiiij; 
her,  A  iiinJto fortiori,  the  same  proposition  holds  tjood  if  the  act  complained  of  were 
done  befoi'c  the  oti'endinj;'  ship  came  into  the  jiossesision  of  the  coninii.S8ioniu<r  Govci'ii- 
ment,  or  ttefore  she  was  incorporated  into  its  naval  service. 

The  British  (lOvernment  believes  this  stntenuMit  to  be  agreeable  to 
authority,  and  to  general  usage.  It  is  sui)ported  by  the  American 
jiulgments,  in  the  cases  of  the  Siintissiina  Trinidad'  and  the  Exchitiigo.^ 

102.  Were  then  these  vessels,  supposing  it  pioved  tl  at  they  or  any 
of  them  had,  before  being  commissioned,  become  liable  to  seizure  for 
an  otfense  against  hiw,  (the  proof  of  which  rests  with  the  United 
States,)  not  correctly  regarded  by  the  Britisli  Colonial  authorities  as 
l^ublic  commissioned  ships  f  It  would  be  enough  to  answer  that,  if  this 
were  so,  the  stiine  error  was  contmitted  by  the  authorities  of  France, 


Appendix  to  British  Case,  vol.  iil,  p.  86.       ^  See  British  Couuter  Case,  p.  20,  note. 


nitlTISH    ARGUMENT. 


297 


Brazil,  tlie  yotliorlands,  and  other  tieiitral  Powors,  and  similar  accusa- 
tions niiftiit  with  equal  Justice  be  directed  ajjainst  them  also.'  IJut  no 
eiTOV  was  committed  either  by  those  Powers  or  by  (ireat  Uritain.  The 
vessels  in  question  entered  the  ports  of  neutral  nations  with  those 
evidences  of  beinjn' ))ubli(!  commissioned  shi]»s,  which  by  universal  usaj^e 
would  have  been  accepted  as  sutlicient  if  tliey  had  borne  the  tla;>'  of  a 
recofjiiized  sovereij^u  State;  and  these  evidences  were  accepted  in 
other  neutral  ports  as  well  as  those  of  (Ireat  liritain.  There  is  no 
reason  to  doubt  that  they  were  in  fact  validly  commissioned,  according" 
to  established  usaj^e  untler  the  authority  of  commissions  and  orders 
issued  by  the  (Tovernment  of  the  Confederate  kStates.  Thecin-nmstance 
that  the  i)articular  a<'t-  by  which  the  vessel  was  invested  with  a  i)ublic 
character  was  in  each  case  done,  not  within  the  territory  held  and  con- 
trolled by  that  Government,  but  at  sea,  was  not,  accordinj^-  to  usajie, 
material,  since  it  is  jierfectly  competent  for  any  Government  to  (Commis- 
sion, out  of  its  dominions,  vessels  wlii<!h  may  never  have  been  within 
the  circuit  of  them,  and  this  has  been  of  no  infieciuent  occurrence. 

Indeed,  in  the  very  year  18<>4,  in  which  the  Slienan<loah  was  connnia- 
sioned,  a  nu'rchant  vessel  called  the  Takians  was  chartered  and  com- 
missioned for  the  United  States  naval  service  at  Shanf>hai,  and  an  ollicer, 
a  party  of  men,  ami  a  gun  haviuff  been  i)laced  on  board  other,  she  was 
dispatched  to  Join  the  allied  tleet  in  Jai)an,  where  she  took  part  in  the 
action  fought  at  Simonasaki  on  the  4th  of  September.'' 

10.').  The  oidy  question,  therefore,  which  remains  is,  whether  the  <Mr- 
cumstance  that  the  Confederate  States,  though  recogni/ed  as  belligerent, 
had  not  been  recognized  as  sovereign,  made  it  tiie  duty  of  the  author- 
ities of  neutral  ports,  in  this  one  ])articular  respect,  not  to  treat  vessels 
comniissioned  by  the  Confederate  (lovernment  as  they  would  have  been 
bound  to  treat  commissioned  ships  of  a  recognized  Power.  The  answer 
to  this  (]uestion  cannot  be  doubtful,  if  we  consider,  in  the  tirst  idace, 
the  i)rinciple  of  a  recognition  of  belligerency ;  and,  secondly,  the  reason 
of  the  general  immunity  from  local  Jurisdiction  everywhere  conceded  to 
public  vessels  of  war. 

104.  A  neutral  power  which  recognizes  as  belligerent  a  community 
which  it  has  not  recognized  as  sovereign,  thereby  allows,  as  against 
itself,  to  that  community  all  the ./?<»•«  belli ;  the  tirst  of  which  is  the  right 
to  employ  military  and  naval  forces,  and  to  make  i)rovision,  in  the 
customary  modes,  for  their  command  aiul  discipline.  The  right  to  ap- 
point and  commission  officers,  and  to  connnission  ships  of  war,  is  essen- 
tial to  the  exercise  of  tiw  Jus  belli  at  sea;  regular  warfare — in  other 
words,  war  regulated,  controlled,  and  moderate<l  by  established  rules 
and  usages — would,  indeed,  be  inq>ossible  without  it;  such  commissions, 
therefore,  are  of  necessity  recognized  by  the  neutral  Power ;  and  vessels 
armed  with  them  are  allowed  to  exercise,  as  against  the  ships  and  sub- 
jects of  the  neutral,  those  j\ira  belli,  which  are  by  usage  exercisable  by 
lej^ularly  commissioned  ships.  To  merely  honorary  privileges,  such  as 
salutes  and  the  like,  otticers  of  a  Government  not  recognized  as  sover- 
eign have  no  claim,  though  no  law  or  (Uistom  forbids  that  the  courtesies 
which  otli('ers  of  different  nations  are  accustomed  to  exchange  should 
be  shown  to  them  personally.    The  British  Government,  during  the  war, 

'  British  Caso,  pp.  12, 17.  Appendix  to  British  Case,  vol.  vi,  pp.  1-148.  British  Coun- 
ter Case,  pp.  119-1-2:5. 

•As  to  this,  see  British  Case,  p.  24. 

'C'orr(>spoiuleuco  respeutinjj  ali'uirs  of  Japan,  (Japan  No.  1, 18G5,)  presented  to  Parlia- 
mcut  1865,  pp.  100-101). 


1'^ 


'  i 


% 


w 


29H 


UKITISH    AROUMKNT. 


•jVi:; 


i 


gave  onlers  tlnit  tlie  Con  federate  fill};  Hliould  not  ho  salutcMl.'  IJiU  tlio 
priiicipUi  of  an  nnpaitial  neiitiality  ivqiiiirs  that  any  powers,  lilxTtics, 
or  iuiinunitit's,  tlio  n^t'iisal  of  whicli  to  ont;  bi'llij^crcnt  would  place  liim 
at  a  (lisa»lvantaj;c  in  matters  reiatin};-  to  tlio  war,  .should  bii  adniittcil  to 
belonjj,  f(U'  the  purposes  of  the  war,  to  both  alike. 

10.~).  What,  then,  is  the  reason  of  the  inununity  from  local  jurisdictiKn, 
whie.h  is  socureil  by  eiistom  to  public  ships  of  war,  and  to  what  class  of 
privih^yes  «lo»\s  it  belon<»' ?  Is  it  to  be  reckoned  amouf>;  hon(U'ary  privi- 
le};es,  and  re{;arded  as  artectin<;<)idy  orchi«iHy  the  dignity  of  the  Sovcr- 
ei};n  or  State  untlcr  whose  tlaj*'  the  V(^ss^^l  sails  i  Clearly,  this'  is  not 
.so.  The  reason  (which  has  been  tmpuMitly  ex|)lained)  is,  that  this  ex- 
ceptional inununity  is  necicssary,  in  order  to  prev(Mit  the  operiitions  in 
which,  and  the  objecits  for  whic/n,  a  military  or  naval  force  is  employed, 
from  beinj;'  snbje(!t  to  be  defeateii  or  interfered  with  by  the  action  of  u 
foreij^n  i*ower.  It  isessi'Utial  that  the  sui>reme  and  undivided  coimnaiid 
oftho.se  forces  and  every  i)art  of  them  should  be  exer<!i.sed  by  the  Ileiid 
ordovernment  of  the  State,  indepen<lently  of  all  «'xternal  control;  and 
this  is  a  ri^ht  whiidi  uo  State  would  ever  consent  to  forego,-  It  is  man- 
ifest that  this  reason  is  as  stronj;'  in  the  ca.se  of  a  ('immunity,  under  a 
ileJ'iU'to  Government,  t^iirryin^i"  cm  war,  but  not  recojtni/ed  as  .sovereijin, 
as  in  that  of  a  recoj;nized  .sovereij-u  State;  and  that  to  refu.se  this  Tree- 
doin  to  one  of  two  bellijiercMits  and  fjrant  it  to  the  other,  would  idat'o 
the  former  at  disadvantaj^e  in  matters  relating  to  the  war,  and  woidd  not 
be  incompatible  with  imi)urtial  neutrality.  It  woidd  be  in  ettcct  to  yiant 
to  the  one  and  refuse  to  the  other  access  to  the  ordinary  hospitalities 
of  toe  neutral  port ;  since  it  is  imi>robable  that  any  belli}ferent  Covern- 
ment  would  sutter  its  armed  ships  to  subject  them.selves,  by  enteiinj,' 
the  territorial  waters  of  a  foreign  sovereiyii,  to  any  other  Jurisdiction 
than  its  own.  Siujhhas  been  the  practice  of  all  civilized  nations  duriii<;' 
revolutionary  wars,  before  an  insurjjfent  i)opulation  ha.s  established  its 
title  to  be  recogni/ei  as  an  independent  State ;  .such  were  the  principles 
and  the  ju-actice  of  the  United  States  duriu};  the  wars  between  Spain 
and  Portujjial  and  tluiir  revolted  Colonies,  before  those  Colonies  had 
achieved  their  indepeiulence. 

100.  A  passage  in  ^Ir.  Ju.stice  Story's  Judgment  in  the  case  of  the 
Santissima  Trinida»l  sums  np  in  .so  clear  a  manner  the  con.secpience.s 
resulting  from  the  existence  of  belligerency  and  neutrality,  in  a  case 
of  civil  war,  that  it  may,  with  much  advantage,  be  here  subjoined.  The 
question  related  to  the  .ship  Independencia,  which  had  passed  into  the 
war  service  of  the  llev«)lutionary  Government  of  Buenos  Ayres,  under 
the  circumstances  stated  in  an  earlier  part  of  the  present  Argumciit,' 

"111  <j<'iioriil,"  .said  that  (Muineiitjiidije,  "the  coimni.ssioi;  of  a  public  .ship,  sii>iiiMl  hy 
the  proper  aiiHioritieH  ol'  tlie  nation  to  which  she  l)i>!o!iu:»  i  is  a  coiupleto  ]»i()ot'  of  her 
national  cliaiactcr.  A  bill  of  sale  is  not  necessary  to  b,;  i)U)tluce<l,  nor  will  the  Courts 
of  a  foreiH;n  country  iiKinire  into  the  means  by  wMcl-  the  title  to  the  projierty  li.is 
been  acquired.  It  would  be  to  exert  the  rif^ht  of  exaijiniug  into  the  validity  of  the 
acts  of  the  foreiffii  soveieifrn,  and  to  sit  in  judifinent  upon  them,  in  cases  wlieie  liehiw 
not  conceded  the  Jurisdiction,  aiul  where  it  would  be  inconsistent  with  its  own 
supremacy.  The  coinmission,  therefore,  of  a  public  ship,  wiien  duly  authenticated- 
so  far,  at  h^ast,  as  forei<i;n  Courts  are  concerned — imports  absolute  verity,  and  tin;  title 
is  not  examinable.  The  property  must  be  takeu  to  be  duly  accpiired,  and  cannot  he 
controverted.  This  liJis  been  the  settled  practice  between  nations;  aud  it  is  a  niU' 
founded  in  imblic  conveuitiuce  and  policy,  aud  cannot  be  broken  in  upon  svithoiit  en- 
dangering the. peace  and  repose  as  well  of  neutral  as  of  belligerent  sovereigns.  The 
commissiou  in  the  present  case  is  not  expressed  iu  the  most  unequivocal  terms ;  but  its 

'  British  Counter  Case,  p.  121.    Appendix  to  British  Case,  vol.  v,  p.  129. 
2  British  Couuter  Case,  pp.  14,  It).  "g^e  ante,  p.  7. 


nRITlHIl    AUOUMENT. 


200 


I'iiir  piirporf  iiiul  iiitcritrctiition  must  ho  (lociimd  to  aitpl.v  to  ii  piildiii  Hliiji  of  I  lie  Oov- 
riiiMii'iit.  It' \vt>  tiilil  to  this  tint  I'oi'i'oltDi'iitivi'  tcsiiiiiiiMv  of  our  own  anil  thf  iliitisli 
('(iiisiil  at  ItuiMios  Ayrt's,  us  well  as  thai  of  privatr  (nti/rns,  to  tin-  nntmicl y  of  her 
ilaiin  to  ti  piiliiii-  charactiM',  and  iinr  ailiuission  into  our  ports  tis  a  pnlilic  sliip,  with  tho 
iiiiiiiiniitifs  anil  pri\  ilc^fs  lirlon^rinji;'  to  such  Niii|i,  with  th<'  ixprcss  apinoliation  of  mil' 
iiwn  t'DViTiinK'nt,  it  docs  not  sconi  too  nmch  to  asscil,  whatrvrr  nii;;hl  lie  the  piivato 
Mis|ii('ion  of  a  Ini'kinji;  Anicrican  intiufst,  that  she  nnisi  Ik-  jndit'ially  hthi  to  l)(>  a  pub- 
lic ship  ot'  the  <'(Hintry  whose  coinniission  she  lifai's. 

"'fluTf  is  anothiT  oltji't'tlon  nijit'd  against  the  admission  of  tliis  \cssrl  to  tin'  pri\i- 
ji'iri's  and  imnHinitit's  of  a  public  ship  which  nniy  well  Ix- disposed  of  in  eoiniectioii 
with  till'  nuestioii  already  considered.  It  is  that  Mnenos  Ayies  1ms  not  lieeii  aeknowl- 
idjjcd  as  a  sovcrei;;ii,  independent  (ioveiiiinent  by  llie  Ivveentive  or  Lt';;islatnie  of  tlin 
I'liiti'd  States,  and  therefore  is  not  entitled  to  have  her  shi|is  of  war  iecii«4;nizcd  by 
iinr  I'oiirts  as  national  sliijis.  Wn  have  in  former  cases  had  occasion  to  express  our 
iipiiiion  on  this  point.  The  (liovernment  of  the.  riiited  States  has  rccov;ni/ed  Ihu 
ixi.stcnce  of  a  civil  war  between  Spain  and  her  colonies,  and  has  avowed  a  deter- 
niiiiiitii>ii  to  remain  neutral  between  the  jiarlies.  and  to  iiUow  to  each  the  same.  ri;;lits 
iit'iisyliiiii  and  hospitality  and  intercourse.  I^acli  party  is  therefore  deemed  by  ns  ji 
lii']li)i;i'rent  nation,  Iniviii;;,  so  far  as  concerns  us,  the  soverei;;n  ri;i;lits  of  war,  and  eiiti- 
lli'd  to  be  respected  in  the  cKcrcise  of  those  rij;lits.  We  eaiinot  interfere  to  the  prejii- 
itiic  iifeither  belliH;erent,  without  malcinj;  ourstdves  a  parly  to  the  contest  and  de|>art- 
iiij;  tiom  the  ))iistiire  of  nciitriility.  All  captures  made  by  each  must  be  considered  as 
ii:iviii|;' the  same,  validity ;  and  all  the  immnnities  which  may  be  claimed  by  public 
ships  III  our  ports  under  tho  law  of  mitioiiH  must  bo  coiisiiUtred  as  cqiiallv  the  ii<;lit  of 
.null."' 

107.  801110  inconvenience  may  arise  (as  appears  to  be  .siififiested  in 
tlio  Counter  Case  of  the  United  States)  tVoin  the  eireiinistaiice  that, 
slidiild  any  cause  of  coniphiint  arise,  no  official  repre.sentutions  can  be 
made  by  th(i  neutral  toa  (lovernnient  with  wliich  it  has  no  otllcMal  inter- 
conr.se.  But  this  inconvenience  is  liable  to  occur  in  every  case  in 
which  a  bellififereiit  cruiser  coiniuissioned  by  such  a  Goveriiiuent  may 
liave  done  any  unlawful  or  imi)roi)er  act  on  the  hiyh  seas,  such  as  an 
ii'ro{«alar  exercise  of  the  rif^lit  of  search  or  tin  ilh'<;al  capture.  This  has 
not,  however,  prevented  neutriils  from  concedinji"  to  such  crui.sers  on 
tlie  liiyli  sciis  the  exercise  of  the  rij>hts  which  behnij;'  to  ships  duly  coiii- 
iiiissioiied.  Aj>'ain,  inconvenience  may  arise  where  citizens  or  subjects 
of  the  neutral,  who  may  be  within  the  territory  held  and  ruled  by  such 
aGoveriiiiieiit,  have  sutfered  from  any  real  or  apparent  abuse  of  jwwer. 
Yet  it  has  not  been  the  practice  of  neutrals  in  such  cases  to  treat  the 
(/(\/W('/o  (lovernnient  as  non-existent,  althou/^h  they  may  not  have  recoo'- 
iiized  it  as  sovereign.  More  than  on(;e  diiriuj?"  the  war  Her  Majesty's 
lloveniment  was  desirous  of  addressin{>'  unotli'.ial  representations  to  the 
Government  existing"  in  the  Confederate  Stiites;  and  it  was  jirevented 
troiii  «loing  so  only  by  the  refusal  of  the  United  States  Government  to 
allow  such  communications  to  pass  throu{^h  the  blockade<l  ports,  lint 
it  is  clear  that  this  refii.sal  could  not  impose  on  neutral  powers  any  ob- 
lijJiatioii  to  treat  Confederate  ship  ,  or  the  Confederate  Govern ment 
itself  in  a  manner  different  from  that  in  which  they  would  otherwise 
liave  been  entitled  to  treat  them. 

MS.  The  British  Government  will  here  repeat,  as  bearing  on  this  part 
of  the  subject,  two  propositions  already  stated  in  the  commencement  of 
its  Case,  and  which  it  believes  to  be  incontrovertible  : 

Maritime  war  beinj^  carried  on  by  hostilities  on  the  high  seas,  and  through  the  in- 
strumentality (ordinarily)  of  vessels  commissioned  by  public  anthority,  a  neutral  power 
i^i  humid  to  recognize,  in  matters  relating  to  the  war,  commissions  issued  by  eaidi  bcl- 
ligi'icnt,  and  captures  made  bj*  each,  to  tlie  same  extent  and  under  the  same  conditions 
as  it  recognizes  commissions  issued  and  captures  made  by  tho  other. 

'Appendix  to  British  Case,  vol.  iii,  p.  86.  A  portion  of  the  passage  given  above  was 
cited  by  Mr.  Justice  Grier  when  delivering  tho  judgment  of  the  Supreme  Court  in  the 
eases  of  the  British  ship  Hiawatha  and  three  other  vessels  captured  by  United  States 
cruisers  in  the  first  year  of  the  civil  war.  See  also  judgments  in  tho  case  of  the  Diviua 
Pastora  and  Estrella.    (Ibid.,  pp.  80,  81.) 


m 


if 


4K-  >Hj 


■I 


S      . 


ww^^nif^ 


'ij*.. 


I 


o 


00 


BRITISH    ARGUMENT. 


WliPH!  citliiT  boUijifi'nMit  is  a  coniiiiiinity  or  liorly  of  i»(>,r.sons  not  ivpo<rniz(  il  liy  tlic 
iieiitial  pi)\v<T  as  c<»ii.>stitiitiiiu;  a  sovHreiyn  Slatu,  CDiiinii.ssionH  issiuul  l>y  niii;li  ln-llijfiMi  nt 
art'  ri'coi^iiizi'il  as  a(;ts  ('inaiiatin;>',  not.  indeed  from  a  sovcrtMjj:ii  (iovt'riiiiKrnt,  l)iu  Iidui 
a  iMTson  or  jkmsous  exercisiiij;  (lrJu<io,  in  relation  to  the  war,  tlie  powers  of  a  soveni.fi, 
Government.' 


British  Case,  p.  4. 
The  (Jounter  Case  of  the   United  States  contains  the  f(dh)\vinij  statement,  (si'c.  l. 


par.  1 :) 


It  !-•  assnined  in  that  (the  Hritish)  Case  that  the,  roliels  of  tlie  llniteil  States 


\VIT( 


l)y  Her  Majesty's  rroehiniation  of  May  :{,  l-'lil,  invested  with  sonii:  niuh'lliied  ixililical 
attrihntes.  Hut  the  I'niled  States  liavc^  hitiierto  nnderstood  that  Her  Ma,j<'sty's  (niv. 
ornmeiit  mei'eiy  assnnied  to  rej^ard  tlie  persons  who  resisted  the  powta'  of  tln^  iJiittd 
States  as  a  liody  of  insurrectionists  who  niijj;lit  he  reco^iiizeil  as  idorln^l  with  lu'lljir. 
ereiit  rij^hts  at  the  discretion  ot' nentral  powei's.  'I'ln^y  tlnu'efore  think  it  ri;;ht  (ocdii- 
clnde  that  the  freiiiient  use  in  the  ISritisli  (.'ase  of  lan;j;uajje  implyinj^  reco^ni/oil  iiolili- 
ca/ attrilnites  in  the  insurrection  is  an  inad\erteni;e." 

The  IJritish  (iovernnient  is  at  a  loss  to  understand  what  is  inteiidiid  l)y  this  ohscrva- 
tion,  the  I'nitt'd  States  havinji;  omitteil  to  specity  oi'  indicate  the  particnlar expressions 
to  whieh  they  refer.     IJnt.  in  order  to  avoid  misconception,  Her  Majesty's  (iovMM'iiiin'iit 


vill  refer  to  a  JiidLjmeiit.  pronounced  since  the  conclusion  of  the  war,  i»y  the  Suprenir 
Court  of  the  Inireil  ."Stales,  in  refercMicc  to  thi^  ciiaracti^r  and  status  of  the  ('onfi'dcrati' 
States  and  their  (iov<'rmnent  diirinir  the  war.  Tlicrt;  arc,  so  far  as  Her  .Majt^sly's  (inv- 
ernnicnt  are  aware,  no  expressions  in  the  Mritish  Case  which  niij^ht  not  he  hsimI  with 
strict  aceniaey  and  jnoprii'ly  Ity  a  for<'i.nii  (iovernincnt  in  ri'lcrence  to  a  state  oratl'aiis 
whi(di  has  liceii  thus  charailcii/.ed  )»y  the  domestic  Tribunals  of  the.  United  Stales,  and 
Ijy  the  hi^-hesf  of  these,  the  Supreme  ('onrt. 

The  case  referred  ti)  is  Thi>rini;toii  iv.  Smith  and  Hartley,  decided  in  the  Supri'iiiu 
Court  of  the  1,'nited  States,  in  Deeendter,  l-(li-i. 

The  Clnef  .Justice  delivered  the  o|iiiiioii  of  tlw  Court. 

''The  (|ue.stions  Iiefore  us  niMiii  this  appeal  are  these: 

•'  I.  Can  a  contiiu^t  for  the  iiaynu-ut  of  Confederate  notes,  made  ilurinir  the  lati'  ic- 
belliou.  bci\,ccu  ]iarties  residing;  within  the  so-called  Confederate  States,  be  eid'oirwl 
at  all  in  the  courts  of  tin-  IJuited  States? 

""J.  Can  e\  idi-nce  be  receivi'd  to  prove  that  a  ])romisc  <!xprossed  to  be  for  the  pay- 
ment of  dollars,  was,  in  fact,  made  for  the  i)ayincnt  of  any  other  than  lawful  dollars  ol' 
the  Uniti'd  States  .' 

" :!.  Does  the  evidence  in  the  record  estallish  the  fact  that  the  note  for  sKl.dilO  was 


to  be  paid,  liy  a^i 


it  of  the  i)arti<:s,  in  Confederate  m)tes  '! 


The  tiuotion  is  liy  no  means  free  from  dillicnlty.  It  cannot  b's  (|nestioned  tiiat  tlir 
Confederate  notes  were  issued  in  furtherance  of  an  uidawful  attiMiqit  to  overthrow  ilir 
Government  of  the  United  Srati's  l)y  insurrectionary  Ibrce.  Nor  is  it  adoul)tfnl  luiiici- 
\}]<'  ol'  law  fliat  no  contracts  made  in  aid  ol'  such  an  attempt  can  lit;  enforced   tluiiimii 


th.'  C 


OUllS  o 


f  th 


Mintrv  whose  Covernment  is  thus  assaiK'd.     Hut,  was  the  contrail 


of  the  jiarties  to  this  suit  a  i-ontract  of  that  characti-r  .'  Can  it  be  fairly  divscribed  as  a 
contract  in  aid  of  the  reb(dlion  .' 

"In  cx.iminin;;  this  (|Uesti(Hi,  the  state  of  that  jiart  of  the  country  in  which  it  was 
inad(t  must  be  ( onsidered.     It  is  familiar  history,  that  early  in  l-^dl   the,  anthmitics  ol 

veil  States,  supported,  as  was  alleij;ed.  I)y  [lopiilar  majorities,  combined  for  the  ovcr- 


B( 

th 


if  the   Nat 


lomi 


1    I 


iiMin.  am 


le  estalilishment,  within  its  lioi 


nidi 


iries,  o!  a 


sejiaratc  and  independent  contederati 


th 


A  oiivernmeutal  orjianization,  represent i 


•se  Stat  I 


as  est.iblished  at  Moiity,oinerv,  Alaliama,  first  under  a  I'rovisioiial  t'( 


Htitntion,  and  afterward  under  a  const  i  tut  ion  intendi'd  to  lie  |icrmauent.  In  I  he  couisi' 
of  a  few  months  four  olher  States  acceded  to  this  ( 'oiifederat  ion,  and  the  st  at  ot'  tin' 
centr.'il  anlhority  was  transferred  to  Ikiehmond,  N'irii'inia.  It  was,  by  the  ecutral  au- 
thority tliii-  oru;ani/.i'd.  and  under  its  direction,  that  civil  war  was  cai'ried  on  upon  a 
vast  scale  a;;ainst  the  Coveinnieiil  of  the  United  States  for  more  than  four  years.  Its 
power  was  reco^nizeil  as  siiiireme  in  nearly  the  wholt^  of  the  tiu'ritoiy  of  the  Stati' 


confederated  in  insurrection 


It  was  the  actnal  Govcrnnient  of  all  thi^  insiiri'i'nt  Statis 


exee])t  those  ]iortions  of  them  jirotected  from  its  control  by  the  presence  of  the  jinnnl 
forct  s  of  the  National  (iovcrnineiit. 

"  What  was  the  precise  character  of  this  (iovernincnt  in  contemplation  ot  l.-iw  .' 

"It  is  difficult  to  'letine  it  with  exactness.  Any  deliuition  thai  may  be  <fiveii  may 
not  iiiii>rob.ibIy  be  found  to  re(|uire  limitation  and  ([iialitieation.  Hut  tlu^  ocncral 
princiides  of  l;iw  relatino-  to  di'  faclo  (tovernment  will,  wo  think,  coudnct  us  to  ;i  con- 
elusion  siillicicully  accurate. 

*'  There  are  several  deorei's  of  what  is  calhsd  dvfaelo  Governinont. 

"  Such  a  (Jovcrnment,  in  its  hio|u'st  decree,  assniiics  a  chanicter  very  (dosely  ri'scni- 
blinn  that  of  a  lawful  (jiovermnent.  This  is  when  the  usurpiuj;'  Government  t^xpels  tin' 
rejjular  authorities  from  their  customary  seats  and  functions,  a  id  establishes  itself  in 


BRITISH    ARGUMENT. 


301 


ized  hy  the 

l)i'lli;;i'ii  lit 

N  Imt   iVoin 

il  SOVcirj.rii 


iont,  (sit.  1. 
itiiti's  wi'ii'. 

It'll  pilliliinl 
ji'St  v's  (lllV- 

tli(i  I'liittMl 

iVitll     llfllijr. 

ij;llt,  to  cdii- 
iizimI  ihilili-  . 

liisi  (ibsciva- 
t'Xin'cssious 
ii)V('niiii('iit 

10  iSlipi'clKi' 

L'oiil'iMli'i'ati' 
,j(^sty's  tliiv- 

11  ii.simI  witli 
iti'.  of  ati'aiis 
IStiiti's,  and 

ho  Siipiviiif 


the  lati- re- 
be  cul'orci'd 

for  the  pay- 
Ill  dollars  111 

$10.0111)  was 

iicil  that  tile 

iirtlintw  llif 

"itfiil  iiriiiii- 

il  tlinm^'li 

ic  citiitraut 

scribi'd  as  a 

,hi('h  it  was 
hiiiitifs  III' 
•  till'  over- 
l.'irii's,  o!'a 
pri'-ii'iiliii;; 

sioll.'ll  I'Dll- 
I  111' CIllllSI' 

St  at  of  till' 
I'litral  an- 
on ii|iiiii  a 
years.  Its 
the  States 
.flit  States 
the  aniii'il 


it  law  .' 
crivcii  may 
tTie  ;;i'm'nl 
lis  to  a  t'oii- 


)sely  ivsein- 
t  expels  till' 
les  itself  i" 


109.  It  is  ati  error  therefore  to  suppose  that  it  was  tlie  duty  of  tlio 
antliorities  in  any  IJritish  port  to  seize  or  «letain  Confethu-ate  ships  of 
wnroii  the  efrouiid  that  they  were  suspected  or  believed  to  have  beeu 
originally  ol)taiue«l  from  Knolaud  or  etpiipped  there  by  viohitiou  or  eva- 
sion of  the  law.  On  the  coutntry,  to  do  this  would  have  been  a  depart 
lire  from  the  priueiples  of  an  impartial  neutrality:  ro  do  it  without 
some  previous  notiee,  exclu<liuf>'  them  from  the   ri,iiiit  of  admission  to 

iiii;  cliaracterLstie  ofsnch  aGovertuiieiit  i.-i,  that  adliereiit.s  to  it  in  war  a.^ain.st  the  Gov- 
eninu'iit  dc  Jure  do  not  iiicui'  the  penalties  of  treason  ;  and  under  eeitaiii  limitations, 
(ililijialioiis  ii.ssiinied  by  it  in  Ix-half  of  the  eonntry,  or  otiierwise,  will,  iir  {general,  bo 
i('S])ectt'd  by  the  (iovernineiit  dcjiirc  when  restored. 

"Kxaiiiples  of  this  deseriptioii  of  (Joveri-.nient  dc  Judo  are  found  in  Enf;lish  history. 
The  statute  11  Heiir    \'II,  e.  1,  relievfs  from  [leiialties  for  treason  all   persons  who,  in 
,  (k't'i'iise  of  the  Kinj;  for  the  time  beini;-,  wa^n  war  af;ainst  those  who  endeavor  to  sub- 
vert liis  authority  by  force  of  arms,  though  wan-anted  in  so  doiiii>;  by  their  lawful 
iiKiiiareli. 

'•Hilt  this  is  where  the  usurper  obtains  actual  possession  of  the  royal  authority  of 
till'  kinjidom;  not  when  he  has  snceeeded  only  in  establis,hiim  bis  jxtwtM'  ovei-  iiariicu- 
lai'lecalities.     l?ein^  in  ))ossession,  allej^ianee  is  due  to  him  a.-^"  Kiiij;-  dc  fiifto. 

"Another  example  may  lie  found  in  tin;  (ioveriimeiit  of  Kn;;ianil  under  the  Common- 
wealtli,  liist  i)y  I'arliameiit,  and  atteiwards  liy  (Jroniwell  as  I'roteetor.  It  was  not,  iu 
the  coiit(!iiii)lati'.>n  of  law.  a  (ioveniiiu'iit  dc  jure,  but  it  was  a  ( JoviMiiment  dcjhclo  in  the 
iiiiist  al'solute  sense.  It  inenrred  oblin-atioiis  and  iiiadi'  eoiii|iiests  which  ri'iiiained  the 
.ulijfatioiis  and  ('oiHpU'Sts  of  iMiylaiid  atter  the  h'estoral  ion.  The  better  opinion  doubt- 
less is,  thai  acts  doiiii  in  obedience  t'.>  this  {iovernineiit  eoiild  not  be  just  ly  rij;arded  as 
tioasonabh  ,  thoii;;li  in  hostility  to  the  Kiii}.';  f/c  /(O'c.  Such  acts  were  protected  from 
ciiiiiinal  pio.secution  by  the  spirit,  il'  not  i)y  the  letter,  of  the  statute  ol'  Henry  the 
Seventh.  It  was  held  otherwise  by  the  judges  by  whom  Sir  Henry  Vain;  was  fried  for 
Ueason,  in  t!ie  year  Ibllowini;  tin,'  Restoration,  lint  such  a  judi^incnt,  in  sueii  a  time, 
has  little  authority. 

"It  is  very  certain  that  the  Confederate  Government  was  never  acknowledji'ed  by  the 
I'liitcd  Slates  as  a  (/(' /fic^*  Governiiient  in  this  sense.  Nor  was  it  ackiio'.vli'il;;i'd  as 
siii.'li  by  other  powers.  No  treaty  was  made  liy  il  with  any  ci vili/ed  State.  Nooldiiia- 
liiiiis  of  a  national  cliara(-ter  were  created  by  it.  biiidinj;',  after  its  dissolution,  on  the 
States  which  it  re))reseiited,  or  on  the  National  ( Jovcriimt'iit.  From  a  very  early  period 
III' the  civil  war  to  its  close,  it  was  rc<;arded  as  simply  the  military  representative  of 
the  iiisiurcetion  a.nainsl  the  authority  of  the  I'nited  States. 

"  lint  there  is  another  description  of  (iovernnient,  called  also  by  ]Miblicists  a  (Jovern- 
iiieiit  ih-  facio,  but  which  nii;;lit,  pciliaps,  be  more  aptly  deiioiiiiiiatcil  a  (ioxermnent  of 
liaiaiiioiiiit  force.  Its  (list int;uisiiiii,n- cliaracteiisties  are.  (1,)  that  its  existence  is  main- 
taiiifd  by  aitive  military  power,  witliin  the  territories,  and  aj:,ainst  the  ri  eh  I  fill  author- 
ity of  i.ii  established  and  lawful  (iox  (•riiment ;  and  ("i,)  that  while  it  exists,  it  must 
iiee.'ssarily  be  obeyed  in  civil  matters  by  ))iivate  citi/ens.  who,  by  acts  of  obedience, 
leiiilered  ill  siibuiissioii  tosueli  force,  do  not  become  responsible,  as  wi(nii;-doers,  lor  those 
aits,  tlioniih  not  warranted  by  the  laws  of  the  iii;lilfnl  ( loxernmcnt.  Actual  Goxerii- 
iiHiits  of  this  sort  are  eslalilished  over  ilistriets  dilierin;;'  nieatly  in  extent  ami  eondi- 
tiiiDs.  They  are  usually  administered  directly  by  mililaiy  aiitliorily,  but  they  may  bo 
ailiiiiiiistcied  also  by  civil  aulhorily,  siip])()rted  more  or  less  directly  by  military  force. 

"One  ex.implc  of  this  sort  of  (ioveriiiie'iit  is  luiind  in  the  ease  of  C.-isrine,  in  Maine, 
leiliK'ed  to  lirilish  jiossession  duiiii;;  the  war  of  IHl'J.  l"rom  the  1st  of  September, 
1*14.  to  the  ralilication  of  the  Tiealy  of  I'eace  in  Hb"),  aceonliiie  to  the  jinl^ineiit  of 
this  Coiirt  in  I'nitcd  States  r.'*.  Rice,  "llie  Ibitisli  (joverninent  exercised  all  civil  and 
military  authority  over  the  id.ice.  'I'lie  aiitlicrity  of  the  I'liitcd  Slates  ovei'  the  terii- 
liiiy  was  suspended,  ami  the  laws  of  the  I'liiled  Slates  could  no  lon;i;er  be  rijj;htliil!y 
iiirtiifcd  there,  or  be  oblif^atory  upon  the  iiiliabiUinlH  who  remained  and  submitted  to 
the  eoiiipici'or.  J5y  the  surrender,  the  inhabitants  passed  under  a  ti'm|iorar\  alli';;i;i4iet! 
Ill  the  Ihitish  ({overnment.  and  were  bound  by  such  laws,  and  siicli  only,  as  it  chose  to 
iecoy;iii/.e  and  impose.'  It  is  not  to  be  inferred  from  this  that  the  obligations  of  the 
lieiiple  of  (,'asline  as  citizens  of  the  t'liitcd  Stales  were  !ibroe;ated.  They  were  siis- 
lieiided  merely  by  the  presence,  ami  only  during  tlit;  prese'>ee.  of  the  |)aramount  force. 
A  like  examide  was  found  in  the  case  of  Tampieo,  occupied  during  the  war  with 
Mexico  by  troops  of  the  I'liiteil  States.  It  was  di'termined  by  this  Court,  in  i'Mtimin^ 
'».  I'aerc,  that,  altliou^h  Tamiiicodid  not  become  a  port  of  the  I'nited  Stales  in  eonse- 
i|iii'iice  of  that  occupation,  still,  ha\iMH  come,  to^-cther  with  liie  wli()le  State  of  Ta- 
inan li  pas,  of  which  il  was  pari,  i  n  to  the  exclusive  jtosM'ssion  of  tin- national  forces,  il  must 
I"'  rejjarded  and  respected  by  otlii'r  nations  as  the  territory  of  the  rnitcii  Stales.  Tbe.>50 
were  cases  of  temporary  jtossessioii  of  territory  by  lawful  and  rej;ular  (iovenimoiits  at 
war  with  tho  country  of  which  the  couutry  so  possessed  was  part. 


•  ifi 


m     !  l.ilimKI'V  '     "»(^"' 


302 


BRITISH    ARGUMENT. 


8)» 


British  ports  according  to  the  ordinary  pracHce  of  nations,  would  have 
been  a  fiaj»rj'.(it  public  wronjj. 

110.  But  it  may  be  observed  that  in  order  to  charge  Great  iiritiiin 
v.'ith  a  bi'each  of  international  duty,  and  a  consecpient  heavy  hability. 
on  th.i  plea  tliat  they  were  not  arrested  and  detained  by  tne  autlioririi's 
of  ine  British  Colonies  visited  i»y  th'Mu,  it  would  be  neoessary  to  prove, 
T;ot  only  tiiat  the  forbearance  to  do  so  was  a  mistaken  exercise  of  jiKlg. 

'•Till-  ("cntrnl  ({(tvcniiuciir,  t'..st;il»lislu!(l  for  Mm  iiisurjfent  States,  (liU'ercd  IV. mi  Jk; 
teiiiptirai'v  (Jitvt'i-miicnts  at  Castim^  aiiJ  Taiiipico  in  the,  circuiiistaiiec  that  its  aiitlioritv 
did  n()t  oi'ijjflnatc  in  lawful  ai-ts  of  rcfriilar  war;  Imt  it  was  not,  on  tliat  account,  less 
a<!tual  or  less  snin-cnic.  And  wo  tliiidc  that  it  must  be  classed  ainoiio-  the  (io\  crMnicnts 
of  which  tliesc  are  exanii)les.  It  is  to  he  observed  that  the  rii^hts  and  oblifralionsof  a 
l)ellij;erent  were  ••onceiled  to  it,  in  its  military  character,  very  soon  after  tlu^  war  bi'niui, 
from  motives  of  humanity  and  expedieiu'y  by  the  ITnittMl  States.  The  whole  tcriitinv 
controlled  by  it  was  thereafter'  held  to  bo  encnues' territory,  and  the  inhalulaiits  dt' 
that  territoiy  were  ludd,  in  most  r<'S])ects,  for  enemies.  To  the  extent,  then,  of  ai'tiial 
sui)rem!icy,  however  niilawfully  jfained,  in  all  matters  of  government  within  its  niili- 
t:iry  lines,  the  power  of  the  insnrgeiu  Government  «!annot  be  (luestioned.  That  suprcni- 
aey  did  not  justify  acts  of  hostility  towards  the  I'uited  States.  How  far  it  slmnld 
excuse  them  must  be  left  to  tlio  la\vful  (ioverument  u])on  the  n^-establishiuent  (if  its 
authority.  Ibit  it  made  obedience  to  its  autln>rity,  in  civil  and  local  matters,  not  only 
a  n(!cessity  but  a  duty.     Without  such  oljcdieuce,  civil  order  was  im])ossible. 

"It  was  by  this  (ioveriiment  exercising  its  power  tiiroughont  an  immense  territmy 
that  th<' Confederate  notes  were  issue<l  early  in  the  war,  and  these  notes  in  a  slidi't 
time  became  almost  exclusiv(dy  thi!  currency  of  tlm  insurgent  States.  As  contr.icts  in 
themselves.  excei>t  in  the  contingency  of  .successful  nivolutiou,  the.se  notes  were  uiilli- 
ties;  for,  except  in  that  event,  there;  could  l)e  no  payer.  They  bore,  indtied,  this  char- 
acter upon  their  f.ice,  foi'  they  were  made  |»ayal)le  'ai'ter  the  ratilication  of  a  ticaty  ol 
peact'  bcrwecu  the  ( 'onfederat(}  States  and  the  United  States  of  America.'  Whih'  ilir 
war  histi-d,  however,  they  had  a  certain  coutiugcuit  value,  and  were  use<'  as  money  in 
nearly  all  the  linsiness  transactiinis  of  many  millions  of  jieople.  They  nuist  lii> 
regarde(l.  therefore,  as  a  currency,  imposed  on  the  comnninity  by  irresistilde  force 

'•It  seems  to  follow  .-IS  a  necessai'v  cousef|Ucuce  frinn  this  actnal  Hn])reuuicy  of  tiic 
insurgent  (iovenmu'ut,  as  a  Ijclligenuit,  witliiu  the  territory  where  it  circuhitcd.  ami 
from  the  ie>'e.'.sity  of  civil  obedience  on  the  part  of  all  who  renuiiued  in  it,  thai  tliis 
currency  must  be  considered  in  courts  of  law  in  the  .same  light  as  if  it  had  been  is.sind 
by  a  foreign  (iovcrnuu-nt,  tempor.-iiily  occupying  a  part  of  the  territory  of  the  I'nitiil 
States.  Contracts  stipul.iting  for  payments  in  this  currency  canuot  i)iMegai(lc(l  I'm 
that  reason  only  as  made  in  aid  of  the  for<'igu  invasion  in  the  one  case,  (Udf  tin 
donu'stic  insurrection  in  the  other.  They  ha^'e  no  necessary  relations  to  the  liostilc 
Governuu-nt.  whether  invading  or  insurgent.  They  are  transactions  in  the  onlinary 
course  of  civil  society:  ami,  though  tli' .,  may  indirectly  and  remotely  lU'iunoic  llir 
ends  of  the   unlawful  ( ioverument ,  are    withiut   bhnne,  except  when  itroved  to  liavi' 

been  ent. 'red  into  with   actual  intent  to  fuith(  r  in\asion  or  insurrection.     \Vi' ca i 

doubt  that  such  <outrac)s  should  l)e  enforced  in  the  courts  of  the  United  Slates,  .il'tii 
the  restoration  of  jieace  to  the  extent  of  their  just  obligation.  The  first  iincsiioii. 
thei'efore,  must  leccive  an  alHrniative  answei'." 

T'he  reasons  given  for  the  judgment  of  the  Court  on  tlio  two  reniaiuing  (jucstidns 
have  no  liearing  on  the  subject  of  this  note. 

The  United  States  Counter  Case  states  (sec.  iii,  par.  '.i,)  that  the  Arbitrators  will 
observe  •■  that  the  other  Governnurits  did  not  recognize  the  title"  (Confederate Stiiti's) 
"which  the  insurgents  had  taken  tor  themselves." 

The  I'ritish  rroilaniation  of  Neutrality,  ^Jay  l;5,  Iridl,  (Appendix  to  British  C'asi'. 
voi.  iii,  ]>,  17.)  leferred  to  tln^  seceded  States  not  as  the  '•Co^-federatc  States,"  hut  ;h 
"certain  States  styling  themselves  the  Confederate  States;"  and  thronghoul  the  civil 
WiM  they  wei'c  constantly  spoken  of  in  the  British  (dticial  correspondence  and  iiotiliiM- 
tions  as  the  "so-styled  C(mi'ederiit(^  States." 

On  the  other  haml,  the  Si)anish  Proclamation  of  the  I7th  .Iiino,  1801,  (Appendix  in 
British  Case,  vol.  iii.  p.  'i;i,)  uses  the  designation  "  Confederate  States  of  the  South." 
The  Unite<l  States  Minister  at  ^hidrid  informed  the  Spanish  ({ovenimeiit  that  "tin' 
President  luul  rea<l "'  this  I'l-oclamatiou  "  with  tin;  greatest  yatisfaction."  (Diploiuiiiii: 
corrospoudenc«'  l.-iid  before  Congress,  IHtil,  ji.  '.J'i4.) 

The  circular  instrmitions  issued  by  the  Government  of  Bra/.il,  June  23,  Hll:!.  speak 
of  ''the  steamer  cVlai>arua  of  the  Coniederate  States."     (A|»pcndix,  vol.  iii,  p.  '2.").) 

The  term  ii.sed  in  the  Ureucli  DechiraMon  of  tiio  Ulth  June,  IHtU,  viz,  "  les  fitat.s  qui 
prvlriitUiit  former  nne  Confederatictu  i»articuliere,''  is  in  fact  equivalent  iu  signilication 
to  the  words  of  the  British  rroclauiatiou,  "styling  themselves." 


BKITISH    ARGUMENT. 


303 


)iil(l  have 

It  iJritaiii 
liiil)ility, 
iMiorities 
t')  prove, 
i  of  jiidg'- 


i'le 


m1    flMIIl    i'li 

ts  iiiitliority 
ifroinit,  less 
ovcrniiiciits 
ijIJilioiisot'a 
'  war  Itcjiiin. 
kU-  ti'iritory 
liiil)it;iiits  of 

.'11,  Cll'  iU'tlUll 

liin  ils  inili- 

'llilt  SlllU'Clll- 

iir  it  sliniild 

liiiiciit  (if  its 

(!r.s,  not  (iiilv 

1.;. 

use  tcri'itdvy 

I's  in  a  slidit 

COIltlMltS  ill 

s  were  niiUi- 
'd,  this  chai- 
if  a  treaty  nf 
'  Wliii.aiii' 
iis  money  in 
icy  must  lu' 
ble,  foree, 
^MiKicy  of  tlic 
nla'ted.  1111(1 
t.  that  this 

lu'lMl  issileil 

tlie  I'liitcil 
('t;'ar(h'(l  for 

,  m'  (if  the 

the  hostile 
ordinary 
ii'omoie  tile 
ved  til  have 

We  eaiiimi 
Slates,  after 
;st  (luestidll. 

lljr  ([llestidllS 

lit ratois  will 
■nitcStiitcM 

]?ritisli  Case. 
ites,"  liiit  :i« 
out  tlie  civil 
and  notiliiM- 

,\iil>eiidix  til 
"  tlie  Siilltll." 
It  tliat  "tlic 
(lJi|ihmia(ic 

Hdli,  spi'iili 

,..;2.-..)      , 

's  fitat.s  i|iH 
iiiiiiilifutioii 


111 


(',,mpt:iiiil     :i.^    to 

ll(i:^|»it;il!tifH    JUTiinl- 

m    CDMlclfroii' 

li-tTH     ill      itritirii 
irirls. 


nient  on  a  question  of  at  least  reasonable  doubt,  but  that  it  was  a  plain 
violation  of  ii  known  and  establislied  rule.  It  would  be  intpossible  to 
maintain  tliis  with  any  semblance  of  reason,  lu  tiuth,  the  colonial 
aiitiiorities  acted  rightly. 

111.  It  is  further  su<>«>ested  by  the  United  Sttttes  that  these  vessels, 
when  admitted  into  i)orts  of  the  British  Colonies,  were  id- 
lowed  to  enjoy  there  facilities  and  advant<«<;es  whicli  were 
iitt  accorded  to  arnuHl  ves.sels  of  the  United  States.  Ami 
(since  it  is  eviilent  that  mere  partiality,  thouj^h  it  woidd  be 
11  deviation  from  neutrality,  and,  as  such,  a  proper  subject  for  remou- 
stnince,  wouhl  not  sui)ply  a  ground  for  such  (daims  its  those  of  the 
United  States)  it  is  also  conttMided  tlnit  these  facilities  iiiul  adviintages 
were  such  as  by  the  rides  of  internatioiiid  law  no  neutral  may  concede 
to  itny  belliiierent,  and  that  they  eiiiibled  or  assisted  the  Confedcnite 
ciuisers  to  indict  the  losses  on  which  the  United  Sttites  found  their 
claim  ii<;'ainst  (ireat  liritiiin. 

112.  It  has  been  clearly  shown,  on  the  contrary,  in  the  British  Coun- 
ter C'iisc,  not  only  tluit  the  i)articnl{tr  restrictions  for  which  the  United 
Sttites  contend  as  im])osed  by  interuiitional  law  had  in  reality  no  exist- 
ence, were  not  known  to  tluit  law,  and  are  not  dediicible  from  the  three 
llules  of  the  Treaty  of  Wa.shington,  (Counter  Cii.se,  Part  H,  pp.  \~k  1(!  ;) 
but  it  hits  likewise  been  amply  i)roved  by  a  detailed  exiimination  of  the 
ia'  ^s  ihat  all  the  complaints  »)f  the  United  Stiites  on  this  score  iire 

'•  I  :  >f  the  slightest  foundation;  tlisit  the  l>ritish  C(donies,  thongli 
■■';.;  .(."ully  resorted  to  by  Confederate  ships,  were  by  tar  more  largely 
iind  more  freely  used  by  itrmed  vessels  of  the  United  Sttites ;  tlnit  no 
pai'tiiility  whatever  was  shovvn  to  the  former;  and  thiit,  if  infratdions 
of  the  l^)ueen"s  Kegnlations  were  .sometimes  committed,  the  United  Sttit<'s 
crni.sers  were  the  more  fretpUMit  olfenders;  histly,  that  the  trciitment  of 
Coiifederiite  cruisers  in  British  ports  was  e.ssentiidly  the  same  as  that 
which  they  received  in  the  ports  of  other  neutral  nations,  and  by  no 
means  more  lax  or  indulgent.  (Counter  Case  of  Gretit  Jiriuiiu, 
Pait  IX.) ' 

Ho.  It  hits  thus  been  mtule  numifest  thiit  the  complaints  of  the 
United  States,  notwithstanding  their  ntunber,  the  dmrac-  ,(,.,.;,.„  „,  ,,,,. 
tei' of  gfiivity  which  hits  been  a.scribed  to  them,  and  the  Sstr^^^^^^^^^^ 
wainitli  with  which  they  h.ivt^  been  urged,  reduce  them-  ■"""'^'■'"■ 
selves  when  e  :,M>>iiied  to  a  \ery  small  comjiass.  After  iill  (diiirges 
which  lire  ir^kuant,  jdiiinly  iiiidmi.-;;iibie,  or  iibsolutely  trivial,  liiive 
been  set  a^ii.l: ,  '\\.u},  remain  only  some  allegiitions,  (which  (Irciit  Britain 
contentis  a.  )  .viTiVj,  jus,)  applicable,  at  the  most,  to  cue  or  two  i.solated 
ca.ses  of  uninte..  '.  Jii\<\  dehiy  or  mistidcen  Judgment  on  tpu'stions  new 
and  doubtful   i-\   i''     part  either  of  the  Government  itself  or  of  sub- 

'  I'  is  stated  in  the  Counter  Case  of  the  Uiiittut  States,  sec.  v,  par.  .')  tliat  "  it  .-i])- 
pvars  in  el(!ar  eidors  that  Uernuida  was  nuuh^  a  liasc  of  Imstilo  oiiti'iitioiis  liy  t\w 
I'ldiida.  Tli<!  eoniinander  of  that  vess(d  liaviiij;-  coaled,  and  liavinjr  liet  n  at  Hai'iados 
witjiin  less  tlian  seventy  days,  and  liaviii;;-  then  cruised  olf  tlie  •,"»••  -S  New  York  de- 
''ti'dyiiii;-  American  vt'sstds,  arrived  ut  IJeriiinda  I'.nd  iiitornied  tlie  (Jovernor  of  all  these 
tiicts.  The  (ioveriior,  witli  a  kiiowled}i-e  of  them,  jiave  liini  a  liosiiitalde  recei>tion  and 
IK-Tiiiitted  jilm  to  coal  and  rejiair."  This  passa;;(^  iiiinht  lead  to  the  iiniu'ession  that 
tile  Flop!'  h:ul  cnaleu  jit  ?•  irlmdos  within  seventy  days  of  her  arrival  at  Hermiuhi, 
lmttlii«  A.i'.  I.  t,  the  fact.  The  Florida  coaled  at  liarhados  on  the '.Jltli  of  Felirnary, 
1^'>:'.  \..  .:{}•■  ti»  British  Case,  v(d.  i,  p.  1)1.)  ISlie  did  not  arrive  at  Herninda  till  tlu; 
I'ltli  of  .Inly  )'.)'i  ••»,?;  '-"r  did  slie  coid  at  any  British  port  in  the  intcM'val.  On  iiis 
arrival  at  Beni  ■■  '  .,  liPr  coniniandtir  stated  that  he  had  hetMi  at  sea  seventy  days,  with 
tlio  ('xcepti(ni  <.i'  visits  to  the  H.ivana,  Harliados,  and  a  port  in  the  Brazils,  each  of 
^vhicli  had  occupied  less  than  twenty-four  hours.  (Appendix  to  British  Case,  vol.  i,  p. 
IW.)    No  coal  was  taken  in  at  Barbados  on  this  second  visit. 


>:    1' 


304 


BRITISH    ARGUMENT 


oriliuate  oflficials  in  Great  Britain  or  in  distant  colonios  and  depciKlcii- 
cies.  Tiio  nuiltiplicd  and  heavy  claims  wliicij  the  United  States  make 
apiin.st  (irieat  IJritain  lest  on  this  slender  louudation. 

1  It.  The  IJritish  Govern nient  will  here  repeat  sonui  observations \\\w\i 
it  has  already  presented  to  tiie  consideration  ot  the  Arl>itrators : 

A  (•li;ii'<'(!  of  iiljurious  ncj^lij^cnci^  on  tlio  i)iirt  of  a  .soverci<;ii  (JovenniuMit,  in  tlie  cx- 
eieise  of  any  of  tlic  powers  of  sovt'r('i<;iity,  iifL'tls  to  hi;  sn.shiincil  on  sfron^r  and  solid 
jjvonnds.  Evt'iy  sovereign  (iovcrnnK'nt  idainis  tin-  rij>lit  to  lie  iinlttiK'ndt'ntol'cxti'niai 
scrutiny  or  interl'i'i'onct!  in  its  (•x<!i'(dsf  of  tlu^sti  jKnvers  ;  an<l  tin;  ^'cncral  assiniiiitinii 
tliat  tlu!y  ari!  cxcrcisiMl  witli  j!;ood  faitli  and  ivasciialdo  care,  and  that  laws  an-  laiily 
and  properly  administered — an  assumption  wiiUout  which  peace  and  I'riendly  iiirci- 
course  (!oul(l  not  exist  amonj;-  nations— ouj;Iit  to  siil)sist  until  it  has  heen  displaicil  l)v 
proof  to  the  contrary.  It  is  not  (MU)Uf;h  to  sn<;:j;est  or  prove  that  a  (loverinneiit.  iiitln' 
exercise  of  a  reasonalde  Judj^ment  on  some  ijuestion  of  fact  or  law,  and  nsinniji,. 
means  of  inlornnition  at  its  command,  lias  formed  and  acted  on  an  opinion  from  wliidi 
another  (jloveriiment  dissents  or  can  indnee  an  Arliitrator  to  dissent.  Still  less  is  it  siif. 
ficient  to  show  thai  a  judgment  prononnctid  by  a  court  of  competent  juiisdiciioii,  and 
acted  upon  by  tin;  Mxectutivc;,  was  tainted  witli  error.  An  administrative  act  ftiundfd 
on  error,  or  an  erroneous  Jnd.<>inent  of  a  Court,  may,  indeed,  under  some;  circuinstiuiccs, 
found  a  claim  to  compensation  on  bidialf  of  a  person  or  Government  injured  hy  the  act 
or  Jntl^iinent  IJut  a  eharj;e  of  nejj,lifience  brou<;lit  a{j;ainst  a  (Jovi.'inment  cannot  lie 
supported  on  such  uronnds.  \or  is  it  enough  to  suf^j^t'st  or  provt;  some  di'tect  nf 
jiid^nient  or  jienetration,  or  somewhat  less  than  the  utmost  possilde  prom])titiid(' and 
celerity  of  action,  on  the  jiart   't    in  ofticer  of  the  (Government  in  the  exeiiiitioii  of  his 


ollicial  duties.     To  found  on  t 
teruutional  tlnty.  would   bt;  to    ■: 
tration   which   ic'w  Governments  >• 
attain,  in  their  domestic  concerns  ;  li 
unjust  and    fallacious  standard,  wonh 


a  elaiin  to  comixMisation,  as  for  a  breacli ..:  in- 
'  interiiational  atVairs,  a  ]»erfection  of  adminis- 
II'  attain  in  fact,  or  could  reasonably  hop,' to 
oiild  set  up  an  imi)ractieal)le  and,  theicforc,  an 
give  occasion  to  incessant  and  unrcasonalili' 
coini>laints,  and  render  the  situation  of  neutrals  intolerable.  Xor.  again,  is  a  nation  tn 
be  held  responsible  for  a  delay  i>r  omission  occasioned  by  inert!  accident,  and  not  liyilic 
want  of  reasonable  fi)resight  or  care.  Lastly,  it  is  not  sullicient  to  show  that  an  act 
Las  been  done  which  it  was  the.  duty  of  the  (ioveriiineiit  to  endeavos  to  i»revciit.  It  is 
necessary  to  allege  and  to  prove  that  there  has  been  a  failure  to  use,  for  the  prevciitinii 
of  an  act  wliiidi  *iie.  (iovernmeiit  was  bound  to  endeavor  to  prevent,  such  care  astiov- 
ernmeiits  ordinarily  employ  in  their  domesrie  concerns,  and  may  reasonalily  he  cx- 
jK'cted  to  exert  in  matters  of  international  interest  an<l  obligation.  These  eoiisidria- 
tions  apply  with  especial  force  to  nations  which  are  in  the  enjoyment  of  free  iii>tiin- 
tions,  and  in  which  the  (jiovernment  is  bound  to  obev,  and  cannot  dispense  with,  tliu 
laws.' 

ll.j.  What,  then,  an»  the  (;laiins  which,  on  these  slijiht  iind  nnsiihstaii- 
tiid  jironnds,  the  United  Stares  Inue  presented  to  tlic  tii- 
H,niu"".i'Vnii.Mi  bnntil  '.  They  are  claims  for  the  \alne  ot  all  captures  iiiiulo 
by  all  the  ships  eniimer.'^etl  in  their  Case — nay,  even  (as  it 
wonld  .seem)  for  all  captnres  whatever  Jiscertained  to  liave  iiiiidc  by 
confederate  armed  shijfs  dnrino-  the  war  ;  for  all  losses  iidiicted  by  tliem 
which  the  American  (;iti/ens  who  Itave  sidfered  thereby  mtiy  thiidc  iiioptn 
to  ask  to  have  (;hiu\ned  aj^iiinst  Gretit  Britain  ;  ami,  fnrther,  lor  the 
expenditure  iUk',i;e<l  to  hiive  been  incnrred  in  tryino"  to  captnre  those 
ships  or  to  protect  United  States  comnuM-ce  against  them. 

IIG.  Tlie  JiriUsh  Government  has  thonght  it  right  to  present  to  the 
oi,...n„tin,iH  nn  notice  of  the  arbitrators  some  considertitions,  which  it  be- 
In'',,«,l'r'c.'''o'i'''c,.,.!',"i.'!  lifes  to  be  just  and  materiid,  directed  to  show  thitt  any 
'"'""  claims  of  this  ntiture  for  losses  in  war,  alleged  to  hiivebeen 

sustained  thnmgh  some  negligence  on  the  pjirt  of  the  neutnd,  are,  in 
principle,  opeu  to  grave  objections.  It  has  been  observed  that  the 
alleged  default  of  :he  neutral,  even  if  it  be  estiiblished,  is  not,  iu 
any  true  or  i)roi>er  sen.se,  the  caus>>,  of  the  loss  to  the  belligerent; 
certainly,  it  is  in  no  sen.se  the  direct  or  active  «!ause;  that  the  only 
share  in  jModucing  this  loss  which  can  be  attributed  to  the  neutral  is 
indirect  and  passive, and  consists  in  nunc  uninteutional  omission;  that 


'  British  Case,  pp.  1G6-7. 


lUv'ITIsir    AliGUMENT. 


ViOd 


|)lM\tl('U- 

.'s  make 

in  the  cx- 
;  ;uiil  tiiilid 
)l'i'Xti'iiial 

SSUtlllltillll 

*  i\ic  laiily 
iidly  iiiti'v- 
s\il;ii't'il  by 
ii'iit.  in  till' 
I  nsinif  tlic 
from  \vliii'l\ 
■ss  is  it  siif- 
[i(:tiiin,  ami 
:ift  rnnnilcil 
,'nuist;nH'('<| 
\  by  tiic  net 
It  c'iinnot  lie 
lie  (Icfcct  lit' 
,)ititntli'  iUid 
iition  (if  Uin 
ivfiuli  <•;  '"■ 

of  Milniiiiis- 
iibly  boil.'  tn 
thcrff'ii'i'.  ail 
ini'casDiialili' 
s  a  nation  In 
11(1  iiol  liy  ilif 
iv  that  an  net 
i-cvciit.  It  is 
Hi  ^irt'vcntidu 

cure  its  t'ov- 
lably  be  ex- 
con>iil<'i';i- 
tVcc  iiistiiu- 

irti;  with,  tlie 

uiisiibstiiii- 
to  tlu'  m- 
tiurs  nmtle 
oven  (its  it 
uiiulc  by 
lmI  by  tliem 
link  pioiHU' 
ev,  luv  tilt-' 
ptiue  tliose 

Isont  to  the 
luic.li  it  be- 
Iw  tliat  any 
,  hivvo  been 
kral,  arc,  in 
tl  that  the 
I,  is  not,  in 
LeUijifivnt; 

lit  tla'  o"iy 

uoiitral  is 

ksion ;  that 


to  asctntaiii  witli  any  approaoli  to  iHecisioii  what  tliat  .sliaic  really  had 
been  would  be  in  almost  all  cases  dillicalt,  and  in  many  impossible  ; 
tliat  tlieie  is  no  precedent  for  such  claims,  and  that  any  argument 
which  can  be  derived  from  the  treaty  of  17t)t,  and  the  ]>roceedings 
of  the  commissioners  under  it,  militates  against  them.  It  was  further 
pointed  out  that  the  relation  actually  held  toward  the  United  States 
by  tlie  peoi)le  of  the  Confederate  States,  who  were  the  active  agents  in 
iiitiicting  the  losses  complained  of,  and  by  whom,  according  to  the  rea- 
soning of  the  United  States  themselves,  the  neutrality  of  (Ireat  Britain 
was  violated  or  eliuled,  is  itself  au  argument  against  these  demands. 
These  States  are  part  of  the  Union,  and  would  share  in  any  benefit 
Avhich  would  accrue  to  its  public  revenue  from  \\liatever  the  arbitrators 
iniji'ht  award  to  be  paid  by  Great  Britain.  On  what  princi[)le  of  inter- 
national equity,  it  was  asked,  can  a  Federal  Commonwealth,  so  com- 
posed, seek  to  throw  upon  a  neutral,  assumed  at  the  most  to  have  been 
ijiiilty  of  some  degree  of  negligence,  liabilities  which  belonged  in  the 
tii'st  degree  to  its  own  citizens,  with  whom  it  has  now  re-entered  into 
relations  of  political  unity,  and  from  which  it  has  wholly  absolved 
those  citizev.s  .' ' 

117.  Supposing,  however,  the  question  of  (tompensation  to  arise,  and 
supposing  the  arbitrators  to  be  of  opinion  that  claims  of  this  nature 
are  not  altogether  inadmissible  in  principle,  it  has  been  maintained,  on 
the  part  of  Great  Britain — 

That  the  looses  which  may  be  taken  into  account  by  the  arbitrators 
are  at  the  utmost  those  only  which  have  directly  arisen  from  the  cap- 
ture or  destruction,  by  one  or  more  of  the  cruisers  specified  in  the  case 
ot'  the  United  States,  of  ships  or  property  owned  by  the  United  States, 
iirby  citizens  of  the  United  States,  and  that  the  extent  of  the  liability 
(if  Great  Britain  for  any  such  losses  cannot  exceed  that  proi)ortion  of 
them  which  may  be  deemed  justly  Pttributable  to  some  specitic  failure 
iir  failures  of  duty  on  the  part  ot  ncr  Government  in  respect  of  such 
miiser  or  cruisers  ; 

That  it  is  the  duty  of  the  arbitrators,  in  deciding  whether  claims  for 
Dinpensation  in  respect  of  any  i)articiilar  default  are  tena')le,  and  on 
the  extent,  if  any,  of  liability  incurred  by  such  detault,  tj  take  into 
iiecount,  not  only  the  loss  incurred,  but  the  greater  or  less  gravity  of  the 
ilet'ault  itself  and  all  the  causes  which  may  have  contributed  to  the  loss, 
and  particularly  to  consider  whether  the  alleged  loss  was  wholly  or  in 
part  due  to  a  want  of  reasonable  activity  and  care  on  the  part  of  the 
Tiiited  States  themselves,  to  an  omission  on  their  ])art  to  take  such 
measures  as  would  have  prevented  or  stopped  the  depredations  com- 
plained of,  and  conduct  the  operations  of  war,  proper  for  that  purpose, 
\vitli  the  requisite  degree  of  energy  and  Judgment ; 

That  the  claims  for  money  alleged  to  have  been  expended  in  endeavor- 
iiiR  to  cajiture  or  destroy  any  confederate  cruiser  are  not  admissible  to- 
;!etlier  with  the  claims  for  losses  inflicted  by  such  cruiser  ;-' 

That  the  claims  for  interest  are  clearly  inadmissible.  The  demands  of 
the  United  States  are  not  for  a  liquidated  sum,  payment  of  which  has 
'"eii  delayed  by  the  fault  of  the  debtor.  They  are  a  mass  of  doubtful 
'laims,  of  unascertained  amount,  which  have  been  a  subject  of  negoti- 
iitioii,  which  Great  Britain  has  long  been  willing  to  refer  to  arbitration, 
nnl  which  would  have  been  so  referred,  had  not  obstacles  been  repeat- 
wily  interposed  by  the  United  States ;  '■'• 


I   :i 


m. 


'  British  ("ountor  Case,  p.  13i. 
-Ibid.,  p.  140. 

20  c 


IHid. 


141. 


30G 


BRITISH    ARGUMENT. 


m 


sis 


That,  should  the  tribunai  award  a  sum  iu  ftioss,  this  sum  ougiit  to  bt- 
measured  solely  bj-  the  extent  d'  liability  which  the  tribunal  may  find 
to  have  been  incurred  by  (Irent  JJritain  on  account  of  any  faiiiuo  oi 
failures  of  duty  proved  against  her.' 

118.  These  propositions  appear  to  Great  Britain  too  clear  to  need  tlic 
support  of  argument.  It  is  evident  that  should  the  arbitrators  be  satis 
fled  th.at,  as  to  any  ship  and  in  any  particular,  there  has  been  a  clearly 
ascertained  default  on  the  part  of  Great  Britain,  it  would  then  becoiiii' 
their  duty  to  examine  wherein  the  default  consisted,  and  whether  it  wiis 
a  Just  ground  for  ]iecuniary  reparation  ;  and,  if  so,  to  determine  the  gen 
eral  limits  of  the  liability  incurred,  having  regard  both  to  the  nature 
and  gravitj'  of  the  default  itself  and  the  proportion  of  loss  justly  and 
reasonably  assignable  to  it.  The  liability  thus  determined,  or  the  aj; 
gregate  of  such  liabilities,  as  the  case  may  be,  constitutes,  it  is  evident. 
the  oidy  just  measure  of  the  compensation,  if  any,  to  be  awarded  to  tlio 
United  States.  The  basis  of  the  award  must  be  the  fact,  established  tii 
the  satisfaction  of  the  arbitrators,  that  certain  losses  have  been  sns 
tained  on  the  one  side,  which  are  justly  attributable  to  certain  specitic 
failures  of  duty  on  the  other,  in  respect  of  a  certain  ship  or  shi])s;  and 
the  basis  of  the  award  must  also  be  the  basis  for  computing  the  sum 
to  be  awarded.  The  power  of  awarding  a  gross  sum  does  not  author 
ize  the  arbitrators  to  depart,  in  substance,  from  this  basis,  althongh  it 
may  relieve  them  from  the  necessity  of  a  minute  inquiry  into  the  par 
ticulars  of  alleged  losses  and  from  intricate  and  perhaps  inconclusive 
calculations. 

The  onlj'  «piestion  which  can  arise,  should  the  tribunal  be  satisfied 
that  Great  Britain  has  failed  in  the  discharge  of  any  internatiouiil 
obligation  toward  the  United  States,  is,  what,  if  any,  conii)eirsii 
tion  in  money  would  afford  a  just  reparation  for  the  loss  caused 
by  that  default?  International  law,  while  it  recognizes  the  obligation. 
as  between  sovereign  States,  to  redress  ii  wrong  committed,  knows 
nothing  of  penalties.  Two  alternative  modes  of  ascertaining  the 
amount  have  been  provided  by  the  treaty.  But,  which  mode  soever 
it  may  be  found  convenient  to  pursue,  the  question  continues  to  be  in 
substance  the  same ;  for  the  foundation  of  the  award  must  remain  tbc' 
same,  (some  specific  failure  or  failures  of  duty,  alleged  and  proved  te 
the  satisfaction  of  the  Tribunal,)  and  the  principle  of  calculation,  there 
fore,  is,  of  necessity,  the  same.  What  is  due  from  Great  Britain  I  would 
be  tlie  question  for  the  arbitrators ;  what  is  due  from  Great  Britain .' 
would,  in  like  manner,  be  the  question  for  the  board  of  assessors,  and 
justice  would  as  clearly'  forbid  that  more  than  what  is  due  should  be 
awarded  by  the  former  as  that  less  should  be  awarded  by  the  latter. 

119.  Lastly,  it  has  been  shown  by  a  i'air  and  careful  examination 
of  the  various  classes  of  claims  presented  by  the  United  States,  so  Im 
as  such  an  examination  was  i)ossible  in  the  absence  of  the  necessaiy 
nuiterials,  (which  the  United  States  have  not  furnished,)  that  theesti 
mates  of  losses,  private  and  public,  which  have  been  laid  before  tlieXri 
bunal,  are  so  loose  and  unsatisfactory,  and  so  i>lainly  excessive  in 
amount,  th.it  they  cannot  be  accepted  as  supplying  even  a  j>r/wr(;/i"" 
basis  of  calculation.  It  has  been  likewise  shown  that  the  estimates  oi 
expenditure  were  the  daims  on  that  head  to  be  considered  aduiissibli'. 
are  also  too  unsatisfactory  to  serve  a  sinnlar  purpose.^ 

Some  new  matter  being  contained  in  the  revised  list  of  claims  ap 


'  British  Counter  Case,  p.  i;52. 

-Briti.sli  Counter  Case,  Part  X,  pp.  134-141 ;  Appendix  to  British  Case,  vol.  vii. 


BRITISH    ARGUISIKNT. 


307 


jtendod  to  tlu^  Counter  Case  of  the  United  States  with  leCerenee 
points,  Iler  Majesty's  Government  lias  thonftht  it  most  conve 


to  these 
points,  iier  luaiestys  ^jrovuiumcm  iias  iuoii<;iil  lu  mosD  convenient  to 
embody  their  further  views  and  arguments  on  this  part  of  the  subject 
in  a  further  report  from  the  committee  appointed  by  tlie  Board  of  Trade, 
wliich  constitutes  the  Annex  (C)  to  this  arjjument.  A  further  note  on 
the  chiims  presented  bj-  tlie  GovernniLMit  of  the  United  States  for  ex- 
penditure alleged  to  have  been  incurred  in  the  ]>ursuit  and  capture  of 
the  confederate  cruisers  is  also  appended  as  Annex  (D.) 

120.  With  reference  to  the  question  of  compensation,  it  has  boon  ob- 
served that  it  would  be  unjust  to  hold  a  neutral  nation  liable  for  losso-s 
iutiicted  in  war,  which  reasonable  energy  and  activity  wore  not  used  to 
prevent,  on  the  plea  that  the  vessels,  which  Avere  instrumental  in  the 
infliction  of  the  loss,  were  procured  from  the  neutral  country,  oven 
though  it  may  be  alleged  that  there  was  some  want  of  reasonable  care 
on  the  part  of  the  neutral  government.  The  utmost  period  over  which 
a  liability  once  established  on  the  ground  of  default  could  be  extended 
on  any  rational  principle  would  be  that  which  must  elapse  before  the 
aggrieved  belligerent  would,  by  the  nse  of  due  diligence  and  proper 
means  on  his  own  part,  have  the  opportunity  of  counteracting  the  mis- 
chief.' The  United  States  seem  to  take  exception  to  this  position. 
To  Great  Britain  it  appears  to  be  just  and  reasonable  in  itself,  to  l)e  sup- 
ported by  sound  legal  princiides  and  analogies,  and  to  be  a  necessary 
limitjition  of  claims  of  this  nature,  should  they  be  considered  admissible 
in  principle. 

121.  The  British  government  has  been  conii)ellod,  therefore,  to  take 
notice  of  the  inetiiciency  of  the  measures  which  were  adopted  bj'  the 
Government  of  the  United  States  during  the  war  to  protect  their  com- 
merce at  sea  and  prevent  the  losses  of  wliich  they  now  oom])lain — losses 
sustained  from  ordinary  operations  of  war,  the  whole  burden  of  which 
the  belligerent  seeks,  now  that  the  contest  is  at  an  end,  to  transfer  to  a 
neutral  nation.  It  can  hardly  be  doubtful  that  these  would  have  1)een 
in  great  measure  averted,  if  the  naval  resources  of  the  United  States 
had,  at  the  time,  been  employed  with  reasonable  activity  for  the  purpose.^ 

122.  It  is  not,  then,  without  reason  that  the  liritish  govornmont  has, 
in  the  concluding  paragraphs  of  its  Counter  Case,  described 

the  claims  which  the  tribunal  is  asked  to  sanction  by  its 
award  as  of  grave  and  serious  consequence  to  all  neutral  nations.  In 
truth,  it  is  not  too  much  to  say  that,  were  they  to  bo  allirmed  as  the 
United  States  have  presented  them,  and  were  the  principles  on  which 
they  have  been  framed  and  argued  to  obtain  general  acceptance,  the 
situation  of  neutral  powers  would  be  entirely  altered,  and  neutrality 
would  become  an  onerous  and,  to  the  less  powerful  states,  (such,  espe- 
cially, as  cherish  the  freedom  of  commerce  and  have  free  institutions,)  an 
almo'  impossible  condition.  It  is  the  interest  of  all  nations  that  the 
recognized  duties  of  neutrality  should  be  discharged  with  good  faith 
and  reasonable  care ;  and  Great  Britain  requires  of  others  in  this  re- 
s^pect  nothing-  which  she  is  not  ready  to  acknowledge  herself  equally 
bound  to  perforin.  But  it  is  likewise  the  interest  of  all  nations,  and  in 
a  still  higher  degree,  that  these  duties  should  be  as  little  burdensome 
as  possible. 

123.  The  question  submitted  to  the  tribunal  is  not  whether  the  sultor- 
diuate  ofiicials  of  the  British  government,  or  even  the  government 
itself,  might  or  might  not,  on  some  occasions  during  the  war.  have 
acted  with  greater  dispatch  or  with  better  judgment.    Xor  has  it  to 


«» 


'  British  Counter  Case,  p.  140. 


-Ibid.,  part  X,  pp.  l:{.a-140. 


308 


imiTLSH    AKGIMKNT. 


(letoi'iiiiiio  wliethor  it  would  be  for  the  lulvantaf^o  ol*  the  world  tliat 
rules  of  action  which  have  not  been  recognized  in  i)ast  tinu^  should  1m' 
established  for  the  future.  These  are  matters  of  opinion  which  Grout 
r>ritaiu  would  not  have  consented  to  refer  to  arbitrators.  The  question 
foi  decision  is  a  question  of  positive  duty  and  liability,  to  be  deteriniiuMi 
solelj'  by  the  application  of  accepted  rules  and  settled  principles  to 
ascertained  facts.  And  no  award  can  with  Justice  be  made  ayaiiisr 
Great  Britain  to  which  the  United  States,  or  Italy,  or  Swit/erlaud,  or 
Brazil,  or  .any  other  power,  under  siuiilar  circumstances,  would  be  Jiistlv 
unwillinj:>'  to  subuiit. 


Mi: 


IVNKX  (A.)-('0.MMI;NI('ATI0NS  IJKTWKKN  Tlll<]  IIHITISII  AND 
AMKKICAX  (iOVHKNMKNTS,  DllUXi;  THH  CIVIL  WAR,  WITH 
RKFERIilXCK  TO  TIIK  STATI-]  (IF  THK  NKl  TUALITV  LAWS  OF 
(;||RAT  I'.RITAIN. 


Ill  iuMitioii  to  the  Annex  (15)  to  tliol5ritish  Counter  Case,  it  is  tlioii^ht 
ilesinible  here  to  exhibit,  in  one  view,  the  ellect  of  every  material  eoni- 
iiuinication  whieli  passed  during  the  war  between  the  Ihitish  and  Amer- 
ican governments  with  rei'ercnee  to  the  state  of  the  neutrality  laws  of 
(iroat Uritain.  Jt  will  be  seen  (1)  tliat  the  equal  eHQcacy  of  the  provi- 
sions of  the  lUitish  foreign-enlistment  aet  with  those  of  the  American 
act  of  the  20th  April.  1818,  -was  never  during  that  period  serionsly  called 
ill  question,  and  (li)  that  the  only  additional  legislation  then  solicited 
from  Great  Britain  by  the  United  States  was  of  a  dilferent  kind,  with 
a  view  either  to  the  prevention  of  the  trade  in  articles  contraband  of 
war  between  (ireat  lUitain  or  her  colonies  and  the  Confederate  States,  or 
totlie  more  effectual  repression  of  acts  iiutonsistent  with  neutrality  in 
the  British  Xorth  American  i)Ossessions,  conterminous  with  the  Tnited 
States. 

On  the  -8th  -lune,  1801,  ]Mr.  Seward  wrote  thus  to  Mr.  Adams: 

As  it  is  uudcvstdod  that  tliorc  is  an  act  of  tlic  ]>riti.sli  Parlianifiit  ximihir  io  oitr  net  of 
imivaUiij  of  thr  'HHh  ^4;)r(7,  l"^!-^,  I  liavi'  to  ic(|iiest  tliat,  if  any  iiirnii}>eiiu'iit  of  the 
liiitish  act  adverse  to  tlic  ri<j;hlis  of  this  (iuscriiincnt  shouhl  come  to  your  kiio\vh'd<;e, 
you  will  cause  conii>laint  thereof  to  be  made,  in  order  that  the  i)urtics  implicated  nniy 
be  prosecuted  according  to  hwv. ' 

On  the  7th  September,  18G1,  Mr.  Seward  instructed  ]\Ir.  Adams  to  remind 
Lordliussell  of  an  act  of  Congress  passed  in  18,')8j  during  an  insurrection 
against  the  British  authority  iu  Canada,  addiug: 

The  British  government  will  jndge  for  itself  whether  it  is  .suggestive  of  aii\  nieas- 
iiiis  on  the  i»art  of  Great  Britain  that  might  tend  to  preserve  the  peace  of  the  two 
luuntries,  and,  through  that  way,  the  peace  of  all  uations.-' 

Ou  the  10th  of  the  same  mouth  he  forwarded  to  ]Mr.  Adams  an  inter- 
cepted letter  relative  to  the  shipmeut  of  arms  aud  powder  from  Xausau 
lor  the  use  of  the  coufederates,  aud  said : 

Thecrhiing  British  sfatiile  for  the  prcrcniion  of  the  armed  expeditions  against  countries  at 
jifrtcc  with  Great  Britain  is  understood  to  be  similar  to  onr  aet  of  Congress  of  the  o/Zt  of 
April,  1818.  Proceedings  like  that  referred  to  iu  the  letter  of  Baldwin,  however,  aft'ord 
us  special  reason  to  expect  legislation  ou  the  part  of  the  British  Government,  of  the 
cliaracter  of  onr  act  of  If'liS.  It  may  he,  however,  that  the  British  Governnicut  now 
lias  the  power  to  prevent  the  exportation  of  contraband  of  war  from  British  colonies 
near  the  United  States,  for  the  use  of  the  insurgents  iu  the  South.  ■* 

On  the  11th  aud  the  14tli  of  September,  1861,  Mv.  Seward  expressed 
his  regret  that  the  British  laws  were  uot  effectual  to  repress 
this  descriptiou  of  trade.  At  a  much  later  date,  (I'lth  October,  1804,) 
recurring  to  the  same  suggestion,  he  wrote  : 

The  insufficiency  of  the  British  neutrality  act  .tnd  of  the  warnings  of  the  Queen's 
liroclamiitiou,to  arrest  the  causes  of  complaint  referred  to,  were  .'inticipatcfl  early  in 
the  existing  struggle  ;  and  that  Government  was  asked  to  apply  a  remedy  by  passing 


'  Appendix  to  Case  of  the  United  States,  vol.  i,  p.  517. 
•Ibid.,  p.  6C0. 
•Ibid.,  p.  .'>18.     See  also  ilr.  Adams's  letter  of  May  12,  lb'(>-2;  ibid.,  pp.  Cm,  CM. 


f: 


310 


IJHITISII    AIKU.MKNT. 


m. 


an  iut  inoi'i'  striii;;i'iit  in  its  cliuiiictcr,  siicli  as  ours  ol"  tin'  10th  Miircii,  1h:h,  wliiili  \,;,, 
«i('('asioiii'<)  liy  a  similar  roiiditidii  ol"  alVairs.  'i'liis  r('((iirst  lias  not  hccn  coiinilicd  with, 
tlionjuh  its  icasonahltMicss  antl  nocossity  buvo  bi  rii  shown  by  snbsiMiiifnt,  cnciiIs.' 

TIu'  act  of  Congress  of  1S.'5S,  tints  ivfci't'od  to,  was  a  t«Mii  penary  statute. 
(of  two  years  filtration,)  by  which  ])owcv  was  ^ivcit  to  the  ollicris 
of  tho  United  States  (loverimieiit  ''to  seize  or  detain  ntiy  vessel,  w 
any  arms  or  intinitions  of  war,  which  nii.i'ht  be  i>rovided  or  iitciuiicd 
for  any  tnilitary  expedition  or  enteri>rise  ((f)((liiNt  the  tcn'itori/  or  domin- 
ions of  (tun  fonUjn  P>'iitc(^  or  .state,  <lr.,  contrnninoiis  iritli  the  Uniteti  States, 
and  with  whom  they  were  at  peace,  controri/  to  the  sixth  .section  of  the  act 
of  the  muh  April,  1818,"'  and  "to  seize  any  vessel  or  vehicle,  atid  all  anus 
or  munitions  of  war,  «/>oj^^  topa.HS  the  frontier  of  the  United  States  fof 
any  plaee  within  uni/foreif/n  state,  dr.,  eonterniinom  with  the  United  Sta'ttx. 
where  tho  character  of  tho  vessel  or  vehicle,  and  tho  qtiaiitity  of  arms 
and  munitions,  or  other  circumstaiiccs,  should  furnish  probable  cause  or 
believe  that  tho  vessel  orve]iicle,armsor  munitions  of  war,  were  ititeiided 
to  be  employed  by  tho  owner  or  owners  thereof,  or  any  other  person 
with  his  or  their  privity,  in  carrying'  on  any  military  expedition  or  ope- 
rations icithin  the  territorj/  or  dominions  of  any  foreign  ^ninee,  d'c.,  eontcr- 
minoas  icith  the  United  States,''^  suitable  provisions  being  made  for  the 
trial,  in  due  course  of  law,  of  tho  legality'  of  all  such  seizures.  These 
powers  (limited,  as  they  were,  to  operations  illegal  under  the  act  of  L*Otli 
April,  1818,  of  which  the  destination  shouhl  be  some  territory  cotitor 
minous  with  tho  United  States)  were  still  further  guarde<l  and  limited 
by  the  following  proviso : 

Proridid,  Tltat  itothiiiiJ  in  tlih  (wt  coiilahKil  sludl  he  conitnud  to  ej'Icud  to,  or  iiilcrfcr' 
uilli, (iiiy  trade  in  (trmn  or  miiiiilions  of  u-<(r,  conditclcd  in  rcuwln  hij  nai,  icitli  (oii/  forciijn pui-i 
or plui(  (vhatcnr,  or  with  any  othei-  tradt)  which  niij;ht  have  i)L'L'n  lawfully  canieildii 
Ijclbrc  the  iiassaj;'*'  of  this  act,  niider  the  huv  of  nations,  and  the  jiiovisions  of  tlio  act 
hereby  amended. 

If  a  law"  substantially  similar  to  this  luul  been  enacted  in  (heat 
I'ritain,  it  would  have  been  wholly  inapplicjible  to  the  trade  by  sen  in 
articles  contraband  of  war,  for  the  repression  of  which  its  enactment 
was  suggested  by  3[r.  Seward.  Its  ellicacy  would  have  been  confined 
to  such  acts,  hostile  to  the  LTnited  States,  as  might  be  attempted  in  the 
British  possessions  conterminous  with  those  States.  Such  a  law  was. 
in  point  of  fact,  enacted  by  the  Canadian  Legislature  as  soon  as  acts  of 
that  nature  were  attempted  by  tho  Confederates  in  the  British  North 
American  provinces  ;  and  Her  Majesty's  Government  has  no  reason  to 
suppose  that  tho  metisures  then  taken  to  preserve  from  violation  the 
neutrality  of  Her  iVIaj(?sty's  North  American  possessions  were  deemed 
unsatisfactory,  or  insufficient  to  meet  that  emergency,  by  the  Govern- 
ment of  tho  United  States. 

Of  the  correspondence  which  took  place  between  December,  18(52,  and 
March,  18G3,  when  Her  Majesty's  Government  invited,  from  Mr.  Adams, 
suggestions  with  a  view  to  concurrent  amendments  in  the  Foreign-Enlist- 
ment Acts  of  both  countries,  (which  suggestions  were  met  by  an  invitation 
from  the  United  States  to  Her  Majesty's  (Joverument  to  make  proposi- 
tions for  that  purpose,  it  being  at  the  same  time  expressly  stated  tliat 
the  Government  of  the  Unitea  States  considered  their  own  law  "  as  of  very 
suHicient  vigor,"  or,  as  Earl  liussell  understood  Mr.  Adams  to  say, 
that  "  they  did  not  see  how  their  own  law  on  this  subject  could  be  im- 
proved,")^ and  the  opinion  then  formed  and  announced  to  Mr.  Adams  by 

'  Ajipeiidix  to  Caso  of  tho  Uuitod  States,  vol.  i,  p.  677. 

-  Appendix  to  the  Case  of  the  United  States,  vol.  i,  pp.  668,  669  ;  also,  pp.  585  ami  6fi''. 


ANNEX    A. fORRKSPONDENCE    RESFECTINfJ    F.    E.    ACTS.     311 


tin'  Hiitisli  (rovcniiiuMit,  (on  which  they  iilways  iUterward  iKitod,)  that 
tiio  IJritish  law  was  also  snnicicnt  for  its  iiitciKlod  purpose,  in  all  casos 
ill  which  the  nocossary  ovidciUHi  of  the  facts  could  bo  ohtainod,  a  snf- 
ticiciit  account  has  hccn  j;ivon  in  the  Annex  (15)  to  the  lli-itish  Counter 
('use. 

Tlic  reply  of  Mr.  Seaward,  (L'd  ^larcli,  18(>.»,)  when  informed  of  the  eon- 
cliisiou  thus  arrived  at  hy  the  Cabiiu't,  has  l>eeii  referred  to  in  an  earlier 
|iiirtion  of  this  argument.  '•  It  remains,"  h(!said,  "  for  this  (ioverninent 
ou.y  to  say,  that  it  will  be  your  duty  to  ur^-'o  upon  Her  ^Lajesty's  (rov- 
(■niiiuMit  th(^  desire  and  expectation  of  the  President,  that  henceforward 
I Icr -Majesty's  (lovernnuiut  will  take  the  neciessary  measures  to  enforce 
the  execution  of  the  law  ((.s  I'aiihJ'uUii  (is  tins  (Jovcynmenf  has  ctrcittcdtlie 
(■nrirsi)i>H(Uii(j  Htaiutcsof  the  ignited  *S7f(/r.v."  '  The  substantial  af^reement 
lit'  tliei)rovisions  of  the  l>ritisli  law  with  tlni  law  of  the  Uniteil  States, 
on  this  subject,  was  rei)eatedly  afterward  admitted  and  referred  to. 

On  the  Otli  April,  IStJ.'J,  Mr.  ])ayton  wrote  from  I'aris  to  Mv.  Sew- 
ard: '^  I  told  31.  Drouyn  de  IAn\yn  our  Forcign-Eulistnient  Act  icds  the 
y(ime  as  that  of  E}ujlan<l ;''-  to  which  31r.  Seward  replied,  (-4th  April, 
ISO.']:)  "  You  iiave  «lone  the  country  a  j^ood  service  in  explaining",  in 
your  ('onversations  with  ^F.  Drouyil  de  Lhuys,  the  manner  in  which  we 
iiavc  heretofore  nmintained  our  neutrality  in  foreign  wars,  by  cnforeUKj 
iiur  enlistment  laies,  n-hlch  are  in  all  respeets  the  same  as  those  of  (Ircat 
Uritain"  ■' 

On  the  11th  July,  ISO.'],  (after  the  trial  of  the  Alexandra,  and  \vitli 
nrorence  to  the  view  of  the  liritish  Foreign-Knlistment  Act,  then  taken 
liy  the  Lord  Chief  Baron  Pollock — a  view  in  which  Her  Majesty's  Gov- 
trnnient  never  acquiesced,  and  on  which  they  never  afterward  acted,) 
Mr.  Seward  wrote: 


I 


I  may  safely  iifotost,  on  bclialf  of  tlit'  I'liiteil  States,  afjjaiust  the  assnniptiou  of  that 
jiiisitioii  l>y  till'  ]5riti.sli  nation,  licfiinse  this  (iovernnient,  irith  a  Slat lac  exactly  nimUarto 
that  of  (ircul  lirituhi,  does  constantly  li(»l(l  itself  able  and  lionutl  to  prevent  sucU  inju- 
lit's  to  (ireat  Ihitain.  The  President  thinks  it  not  improper  to  sngj^est,  for  the  consid- 
eration of  Her  Majesty's  Goveinnient,  the  ((uestiou  whether,  on  ai>peal  to  bo  made  by 
ilieiii,  Parliament  mij;:ht  not  think  it  Just  and  expedient  to  amend  the  existing  Statute 
ill  sueh  a  way  as  to  elfeet  what  the  two  Governments  actually  believe  it  ought  uow 
to  accomplish.  In  case  of  such  an  appeal,  the  President  would  not  hesitate  to  apply 
to  Congress  for  an  e(|uivalent  amendment  of  the  laws  of  the  Uinted  States,  if  Her 
Majesty's  Government  should  desire  such  a  proceeding,  althoutjh  hvre  such  an  aiueiid- 
iiwnt  in  not  deemed  iiecismry:* 

On  the  10th  September,  1803,  !>[r.  Adams  reported  to  Mr.  Reward, 
with  expressions  of  much  satisfaction,  a  speech  then  recently  made  by 
Earl  liussell  at  Dundee  : 

You  will  not  fail  to  observe  the  greatly  increased   firmness  of  his  language;  and 
more  especially  bis  intimation  that  ncin  powLrH  mail  hi:  sulicih-d  fro'.n   rarltament,  if 
Imc  now  held  shonld prove  insufficient.     Tkin  is,  at  least,  the  true  tone- 
Oil  the  IGtli  of  the  same  month,  Mr.  Adams  (with  reference  to  the 
irou-clad  rams  at  Birkenhead,  which  were  soon  afterward  seized  by  lie- 
Majesty's  Government)  wrote  to  Earl  Eussell : 

Your  Lordship  will  permit  nie  to  remind  you  that  Hur  M  ijosty's  GDvernmeut  cannot 
justly  plead  the  inctticicncy  of  the  provisions  of  the  Enlistmont  law  to  enforce  the  du- 
ties of  neutrality  in  the  present  emernjency  as  depriving  them  of  the  power  to  pre- 
vent the  anticipated  danger.  It  will  doubtless  be  remeraborod  that  the  proposition 
iiiade  by  you,  and  which  I  have  had  the  honor  of  being  the  medium  of  conveying  to 
my  Government,  to  agree  upon  some  forms  of  ameudmeut  of  tho  respective  Statutes 


'  Appendix  to  the  Case  of  the  United  States,  vol.  i,  p.  6G9, 


-  Ibid.,  p.  587. 
'  Ibid.,  p.  2G2, 


■*  Ibid.,  p.  G70. 
*  Ibid.,  p.  0711. 


'H 


'J  > 
u  *■ 

I.    I- 


.",12 


MRFTISII    AKCJl'MKNT. 


m 


ol"  tlie  two  coniif lies,  ill  order  fo  iimUo  (lioin  iiion^  crt't'ctivc,  was  cntrrtaiiicd  liy  tin- 
latter,  not  from  aiiji  ivuiit  of  vonfulvmc  in  the  uhilihi  to  ciifoi'ir  the  iwinliiKj  Sl((liil(,  Ixil  I'ldm 
a  (h;»in!  to  co-opciatu  with  wliat  tlii'ii  appealed  to  he  tlio  wisli  of  Her  Ma/ii-sty's  Mini,. 
rcrs.  Itiit,  iiiioii  my  coiiiinmiicatiii;;  this  ifply  to  .voiir  Lonlslii])  and  inviting;  tin  ili> 
(MiHsioii  of  ])i'o|Misiti(>iis,  yoii  tht-ii  iiitornicd  in*;  tliat  it  had  licoii  docidrd  not  to  ihimiicI 
any  finthiT  in  this  diic<tion,  as  it  was  tin;  oiiiiiion  of  tht"  Cuhinct,  sustained  liy  ih,. 
authority  of  the  Lord  Ciiancidior,  that  tins  law  was  I'liiiy  ctfeciivo  in  its  I'li-ii-m 
shaiie,' 

There  were  other  i)iirts  of  the  h'tters  (not  iieeessiiry  to  be  fiirtlnr  al- 
luded to)  wliich  led  J']itrl  Jvussell  to  rejdy  in  the  I'ollowins  terms,  (.Si'^i. 
tember,  !'">,  18G3:) 

Thoro  arc  jiassajfes  in  yonr  letter  of  the  Ititli,  as  Avtdl  as  in  somoof  yonr  fornni  (im~, 
wliich  HO  jdainly  and  repeatedly  inijily  an  intiiinition  of  hostile  proeeedin;;  tnwiuii 
<ireat  Ihitain  on  the  )inrt  of  the  (iovernuient  of  the  I'nited  States,  niiless  nIcjis  hk 
taki'ii  by  Her  Majesty's  (lovernnient  whieh  the  law  does  not  authorize,  or,  ludess  tiic 
law,  wliich  yen  eoiisider  as  insnflieient.  is  altered,  that  I  deem  it  inenniheiit  upon  nir, 
ill  behalf  of  ]ler  Majesty's  (ioveinnient,  frankly  to  state  to  you  that  Her  Miijcstv- 
(iovornment  will  not  be  induced  by  any  .such  consideration  either  to  overstep  the  lilllil^ 
of  the  law  or  to  iiro)iose  to  J'ailianient  any  new  law,  Avhich  they  may  not,  forreasonxit 
Their  own,  think  proper  to  be  adopted.  They  will  not  shrink  from  any  constMiic  ud, 
of  such  a  decision. - 

To  vhicli  Mr.  Adams,  on  the  20th  September,  1SG4,  rejoined  : 

I  must  pray  yonr  Lorddiii)'H  pardon  if  I  confess  myHclf  at  a  loss  to  ])erceive  whw 
liortions  of  my  late  correspondence  conld  justify  the  imidications  to  wliich  you  ictci. 
So  far  from  intimating  "  hostile  ])roceedini{s  toward  flrc.it  Britain,  nnless  the  law. 
which  I  consider  as  insnflieient,  is  altered,"  the  burden  of  hii/  arj/nmcnt  wax  to  urtji  a  n- 
liance  npon  the  lair  as  snffivient,  an  well  from  Iht  imnt  experienee  of  the  United  Statvx  asfnm 
the  confidence  exprcased  in  it  by  the  monl  eminent  authority  in  thin  kingdom.' 

Ill  November  and  December,  18G3,  dangers  on  the  side  of  Canada  led 
to  a  revival  of  the  question,  wlietlier  some  legislation,  similar  to  that  ot 
the  United  States  in  1838,  might  not  be  useful  for  the  prevention  of  those 
dangers;^  and  a  law  for  that  purpose  was  soon  after  enacted  hy  the 
Canadian  Parliament,  as  has  been  already  mentioned. 

Nothing  further  passed  upon  this  subject  between  the  two  Go  vein 
meuts  before  the  conclusion  of  the  war. 


'  Appendix  to  Case  of  the  United  States,  vol.  i,  p.  t)7;5. 
•  Ibid.,  p.  075. 


-  Ibid.,  p.  (i74. 

^  Ibid.,  pp.  075,  070. 


ANNi:X(n.)-niK\CH  TIIANSI.VTIOX  OKTIIK  TIIRKK  lU'LKS  IX 
AKTKIK  VI  or  THK  TItKATV  OK  U  ASHINliTON. 


The  Frcncli  Translations,  both  of  the.  Cast'  of  iror  MaJ.'.-.ty's  (lovt'in- 
,.eiit  and  of  tlioC'aso  of  the  United  States,  (nnolUeially  provided  for  the 
oiiveniiMico  of  the  Arbitrators,)  have  f>iveii  the  text  of  tlie  tliree  liulesiu 
Vrticle  VI  of  the  Treaty,  with  .sonic  variations  of  renderinji',  whieh  {nn- 
,es.s  corrected)  might  possibly  jjivo  occasion  to  niiseoneeptions  of  the 
exact  sense  of  parts  of  those  llnles.  It  has,  therefore,  been  thonyht  ex- 
pedient here  to  snbjoin,  in  parallel  columns,  an  accurate  Cf)py  of  the 
niigiiuil  English  text  and  a  revised  French  Translation  : 


men 

(• 

Ai 

less 


m 


KII.KS. 

A  neutral  (iovoniinoiit  isliouiid — 

First.  To  HMO  duo  diIi;{cnt'o  to  lucvciit 
the  iittiiiK  out,  aniiinij,  or  eiiuippiii;?, 
within  its  jurisdiction,  of  any  vossel  wliuh 
it  has  ronsonablo  ground  to  beliovo  is  iu- 
tiiuled  to  cruise  or  to  carry  on  war  aj^ainst 
;i  I'owcr  witli  which  it  is  at  poaco  :  and 
;ilsoto  uso  like  diligence  to  prevent  the 
ilt'partnro  from  its  jurisdiction  of  any  vos- 
h1  intended  to  cruise  or  carry  on  war  as 
ubovo,  such  vessel  having  been  specially 
adapted,  in  whole  or  in  part,  within  such 

iLsdiction,  to  warlike  use. 

''econdly.  Not  to  permit  or  sutler  cither 
'gerent  to  make  use  of  its  ports  or 
laters  as  the  base  of  naval  operations 
against  the  other,  or  for  tho  purpose  of  the 
rt'iiewal  or  augmentation  of  military  sup- 
jilies  or  arms,  or  the  recruitment  of  men. 

Thirdly.  To  exercise  due  diligence  in  its 
own  ports  and  waters,  and,  as  to  all  i»er- 
-iins  within  its  jurisdiction,  to  prevent 
any  violation  of  the  foregoing  obligations 
ami  duties. 


i:i;tii.i:s. 

I'n  fiduvenieuicut  neutre  est  tciiii — 

1.  J)e  fairc  les  dues  diligences  pour  pn-- 
venir  la  niise  en  <^tat,  rurmenient  en 
guerre  ou  r«'(iuipement,  dans  sa  juridietion , 
do  tout  vaissean  ((u'il  est  raisonnablemenf 
1V)nd("  a  croiro  destine  a  croiser  on  a  faire 
la  guerre  contre  une  puissance  iiveo  la- 
•jiielle  CO  (touveruement  est  en  paix  ;  et  do 
faire  aussi  memo  diligence  pour  empocber 
le  depart  liors  de  sa  jui  idictiou  d<!  tout 
iiavire  destine  a  croiser  (n  a  faire  la  guerre, 
conime  il  est  dit  ci-dessus,  ce  uavire  ayant 
etc  spocialenient  adapte,  en  tout  ou  en 
l>artie,  dans  les  liniites  de  sa  dite  juridie- 
tion, a  des  usages  belligcrants. 

'■i.  De  no  permottro  ni  soulfrir  quo  Tun 
<les  belligcrants  fasso  usage  do  ses  ports  ou 
de  ses  eaux  connue  d'une  base  d'operations 
iiavales  contre  I'autre,  ni  pour  renouveler 
ou  augmenter  ses  nuinitions  militaires  ou 
son  armemeut,  on  s'y  procurer  des  recrues. 

3.  D'cxercer  les  dues  diligences  dans  ses 
propres  ports  et  eaux,  et  a  r<'gard  de  tou- 
tes  personues  dans  les  liniites  de  sa  juri- 
dietion, atin  d'empecher  touto  violation 
des  obligations  et  devoirs  precedents. 


stii 

translation, j.„„ 

•'Choix  de  Pieces  Justificatives,"  furnished  by  the  United  States  : 

Traii^lttlio)!  iakcH  from  Ihe  Caseofihe  Uiiitid     Translation  talcn  from  the  '•  Choir  de  /•((ce-s 
States,  Jiintijivativi.n"  of  the  Unilid  State*. 


I'll  Gouvernement  neutre  est  oblige — 
1.  A  faire  toutes  les  diligences  ncces- 
sairos  pour  s'opposer  dans  les  limites  de  sa 
juridietion  tcrritoriale  iice  qu'un  vaisseau 
soit  uiis  en  mesure  do  prendre  la  mer,  s\  ce 
'I'l'il  .soit  armd  ou  dquip<^,  quand  co  Gou- 
verueinent  a  des  motifs  sufflsauts  pour  pen- 


RKGLES. 

I'n  Gouvernement  neutre  est  teuu — 
I'remieremeut.  Do  faire  toutes  les  dili- 
gences nt^cessaries  pour  dviter  qu'il  soit 
armd  ou  dquip«5,  dans  sa  juridietion,  ancun 
vaisseau  <iu'il  serait  fond<5  a  croiro  dispose 
a  croiser  ou  a  faire  la  guerre  contre  uuo 
puissance  avec  laquello  il  est  en  paix ;  et 


0' 


i 

i  '1 

1 

n  ^ 

' '' 

1 

314 


BRITISH    ARGUMENT. 


s«!r  f|iie  oc  vaisseau  est  llestin<^  A,  croLsor  (»u 
ii  fairc  <les  actcsdc  };uene  coiitro  iiiio  ])nis- 
sanco  avec  huiufllo  il  est  lui-nir'iius  on 
l>aix.  Co  Goiiv<riu'mfiit  df)it  faire  oj^al*!- 
iiici't  toiites  le.-s(liliy;eiici'.s  ut-eessiiircs  pour 
s'opposer  Ti  cr  (in'un  vaisseau  1k■stiii^'^  a 
cruiser  on  :i  lairo  des  aetes  do  jfiu'ire, 
comme  il  est  dit  ci  'essus.  (|nitte  leu  li- 
iiiices  de  sa  juiidietiou  territorialedaiis  le 
(•as  oil  il  y  .iiiraic  «^rt-  siii'cialt'iiient  adiiptt', 
soit  en  toralite,  suit  <'ii  partie,  ades  iisayes 
bellijii'rant.s. 

'2.  I'n  gouveriiement  nentve  m;  doit  iii 
pennettre  ni  toleier  i|Ue  I'un  des  b(;liij;t'- 
rants  so  serve  de  ses  jjoits  oiideses  eanx; 
eonimed'niielsascd'opi 'ration  navalecontre 
nn  antrebeHii^i'raiit ;  il  ne  doit  ni  pei  inettni 
iii  tolerer  nou  pins  rpie  I'lin  des  Itelli^erants 
I'enouvelle  on  anj^niento  ses  ajiprovision- 
nonieuts  militaires,  i|n"il  se  pioenre  des 
arnies  ou  Ideu  encore  qn'il  recrut-j  des 
iiomnics. 

3.  I'n  fionvernenient  nentre  est  oblij^'- 
de  iaire  toiites  les  dili;ieucesre(|nises  dans 
ses  ports  et  dans  ses  eaux,  en  vne  de  pre- 
venir  tontc  violation  des  oblij^ations  efc 
«levoirs  ei-dessns  enonces;  il  ayira  de 
incnu!  a  Tegard  de  tontes  lespersonnesiini 
se  tronveut  dans  sa  jnridietion. 


d'user  do  la  memo  diligence  ponr  enipeeln-i 
<ino  des  vaisseanx  destines  a  eroiser  on -i 
Cairo  la  guerre,  coinino  il  est  dit  ei-dessu.. 
sortent  do  sa  .juridiction,  s'ils  y  ont  rte.  i  n 
tout  ou  partio,  i'.daptes  speeialenient  ;i 
rusage  de  la  jinerre. 


Seeondi'ment.  II  est  tenu  de  ne  iternicr- 
tre  ni  soullVir  (praucun  des  beiiigi'ninr> 
se  serve  de  ses  ports  ou  do  ses  (iaiix  ]ii)m 
eii  faire  la  base  d'operations  navaies  enii- 
tn'  I'antre,  on  dans  lo  but  soit  do  rcudii- 
veleronangnu'iiterlesapprovisionneniciits 
militaires  on  les  arinos,  soit  do  recruterdc^ 
Iionunes. 


Troisii'inenient.  D'exereorlasurveillam . 
nt'cessairo  dans  ses  propres  ports  ct  (l;ui> 
s(!8  eaux,  conunc  aussi  sur  tout  individii 
dans  sa  Jnridietion,  ponr  i)rt'venir  tniiti- 
violation  des  obligations  et  des  droits  (jii; 
precedent. 


WXKX  C -REPOIIT  01'  THE  COMMITTEE  APPOINTED  BY  THE 

HOAKD  OF  TKADi:. 


Ill  acconlaiice  with  tlie  roqnost  oftlic  Board  o"^"  Trade,  w(-  liavo  oxam- 
iiiod  the  Kevisod  List  of  Claims  ]»i'('soiitod  by  tlio  United  States  Afjent 
Kii  the  l.")tli  of  April  last,  and  have  to  oifer  the  followiniL;"  observatit)ns 
(HI  tlieni  in  continuation  of  onr  First  Rei)ort: 

The  a.i>',i>regateaniount  of  claims  contained  in  the  ifevised  Statement  is 
sL'.j,.117,l<)l.  It  is  cv)mi)osed  of  a  claim  of  !:5-"),8l)S.O(!l),  for  inereasiMl  in- 
surance premiums  ;  a  (;lnim  of  8  17!),03.'>,  which  is  styled  "miscellane- 
ous ;■'  and  n  claim  of  ><1!),L*()0,OOL*,  for  losses  snstainot'  in  respect  of  the 
vessels  destroyed  by  the  (;ruisers. 

As  regards  the  claim  for  "  increased  insurance  premiums."  it  is  a  claim 
lor  alleged  indirect  losses,  with  which  we  have  no  concern.  It  may  not, 
however,  be  unworthy  of  notice  that  the  claim  has  been  increasecl  from 
•il,]i.'0,7!)3,  in  the  Former  Statement,  to  *r),8()S,0<;(;  in  the  Itevised  State- 
iiieiit,  between  the  respective  dates  of  the  4tii  of  October  and  the  lath 
of  ^larch. 

As  regards  the  before-mentioned  "miscellaneous'"  claim,  it  is  to  be 
I'oinid  at  p.  -1)0  of  the  JJevised  Stateaient,  and  consists  of  the  following 
items : 

1.  A  claim  oi  811,7^8,  which  is  described  as  follows:  "  Foriletention 
of  ship  at  Philadelphia,  unable  to i)rocure  freight  by  reason  of  the  depre- 
ilations  of  the  Alabama  and  otlier  insurgent  cruisers." 

'2.  A  claim  of  81 -"►,701  for  the  detention  of  another  ship,  which  is  de- 
scribed in  exactly  the  same  way  as  the  last  claim. 

o.  A  claim  of  8.>.  ,000  *'for  loss  of  vessel  captured  by  insurgent  cruis- 
ers V.  II.  Joy  an<i  .Music  (sailing  under  letters  of  inaniue)  near  the 
month  of  the  Mississippi.'' 

4.  Adaim  of  $!>.1,000  "  for  expenses  and  loss  on  account  of  the  break- 
ing up  of  the  regular  vovage  of  the  bark  Almina,  the  ship  Daylight,  and 
the  ship  Julia  (r.  Tyler." 

r».  A  claim  of  8300,032  for  damages,  breaking  up  business  of  "dis- 
patch-line of  China  packets." 

0.  A  claim  of  81,'i.'>2  by  .John   r>urns,  ]\[anchester,  l-^ngland,  for  his 

tloceased  son  Jose[)h  Kurns,  "  for  loss  of  one  hundred  and  eightieth 

sliarcin  catchings  of  the  whale-ship  Iledaspe,  of  Xew  Bedford,  which  he 

the  claimant)  states  was  sunk  by  the  Alabama  with  all  hands  on  board." 

As  regards  the  first,  second,  fourth,  and  fifth  of  these  claims,  it  is 
manifest  at  once,  from  the  above-mentioned  descri[>tion  of  them,  taken 
tVom  the  Statement  itself,  not  merely  that  the  damages,  wliuli  are  not 
and  cannot  be  attributed  in  any  detinitc  degree  to  any  oi'ii  or  more  of 
tlie  Confederate  cruisers,  are  of  far  too  remote  a  character  :,o  be  allowed, 
tmt  also  that  these  claims  are, from  their  very  uiiture,  entirely  and  essen- 
tially claims  for  indirect  losses,  with  which  we  have  nothing  to  do. 

As  regards  the  third  claim,  therv^  is  no  doubt  that  it  must  have  been 
inadvertently  inserted,  for  the  cruisers  V.  H.Joy  and  ^lusic  therein  re 
tirred  to  are  not  comprised  in  the  list  of  cruisers  mentioned  in  the 
Ignited  States  Case  or  Counter  ('ase,  and  are  not  stated  to  have  been  in 
any  way  connected  M'ith  any  ace  or  default  on  the  part  of  the  British 
<.iovernmeut.' 

'Thti  siuiie  cfHisidoratiou  nrtV'cts  tlie  (ilninif!  couiK'ctwl  with  the  cruirtur.s  BoHtoii  iind 
^allio  iu  the  "Former  Stateuient,"  (set;  ]>.  G:<.) 


'^m'' 

ii 

^P 

r 

A 

Xt 

w: 

i: 

fi- 

Jj  i 

.i* 

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^R'^ 

■I- 

BP^^'Sfl^pr 


!'/';■,.  ) 


•m 


:*■  J  ';<!*'■. 


316 


BRITISH    AKGUJIKNT. 


As  iv<;aids  tlie  claim  by  John Ijiirnsfor  his  decoasetl  son  Joseph  llm ns. 
it  will  be  onoufih  to  observe,  in  the  liist  place,  that  it  is  apparently  iitl- 
vanced  by  a  Jiritish  snbject;  in  the  second  place,  that,  considerinj;'  the 
nature,  variety,  and  extent  of  the  demands  generally  put  i'orward.  one 
can  scarcely  «loubt  that,  if  the  whale-ship  IIedasi)e  had  been  in  lact  de- 
stroyed by  the  Alabama,  there  wonld  have  been  other  claims  advaiiccMl. 
besides  one  for  the  loss  of  only  the  one  hundred  and  eightieth  share  in 
the  catchingsof  the  vessel;  and,  in  the  third  place,  that  the  «',laim  is  jis 
remarkable  for  tlie  absence  of  all  material  parti(!ulars  in  the  statenuMit. 
as  it  is  for  the  improbability  of  the  fact  on  which  it  is  alleged  to  lia\c 
been  founded. 

For  these  reasons  we  are  of  opinion  that  the  whole  of  this  •'  iiiiscel- 
laneous"'  claim  of  ><l7it,(>33  must  undoubtedly  be  rejected. 

There  renmins  then  to  (;onsider  the  claim  of  .$ll),20(),0(j2. 

This  amount  ?xceeds  the  corres])onding  sum  in  the  Statement  un 
which  we  have  already  reported  by  >5l,.T)*>,4L*!1,  the  excess  being  due parthi 
to  claims  ill  respect  of  I'cssels  not  claimed  for  nor  mentioned  in  the  Formir 
.Statement,  and  parti  1/  to  additional  claims  being  jiut  forward  in  rcspecl  0/ 
vessels  mentioned  in  that  /Statement. 

,  JJefore,  however,  aualy/ing  this  excess,  and  stating  the  result  at  which 
we  have  arrived,  it  will  be  useful  to  make  some  observations  which  pro- 
sent  themselves  on  comparing,  with  the  Revised  Statement,  the  Origiuiil 
List  of  claims  which  was  sent  by  Mr.  Seward  to  ]Mr.  Adams  in  August 
ISGG,  and  also  the  extension  of  this,  as  i)resented  by  the  President  to 
the  House  of  llepresentatives  in  April,  18()!>,  and  which  are  to  be  found 
in  the  fourth  volume  of  "  the  Correspondence  concenang  Claims  agaiust 
Great  Britain  transmitted  to  the  Senate  of  the  United  States." 

These  lists  of  claims  not  only  strongly  conlirm  the  opinion  we  ex 
pressed  in  our  First  Ueport,  that  the  estimate  we  there  made  of  the 
value  of  the  vessels  was  probably  a  very  liberal  one,  but  also  show  iua 
remarkable  manner  how  since  the  year  18G0  the  claimants  have  in  most 
cases  enormously  increased  their  estimate  of  the  losses  alleged  to  liavu 
been  sustained  by  them. 

We  will  cite  some  of  the  more  striking  instances,  calling  the  list  of 
claims  sent  to  Mr.  Adams  the  "  Original  List,"  the  list  presented  to  the 
House  of  l{epresentatives,tlie  "  United  States  Amended  List,"  the  State- 
ment on  which  we  h;*ve  already  reported  the  "  Former  Statement,"'  and 
the  revised  Mst  of  claims  ou  which  we  are  uow  reporting  "  the  Kevised 
Statement." 

The  Alert. — The  claim  as  stated  in  the  "  Original  List"'  amounted  to 
*.->7,8i)9 ;  in  the  "  Kevised  Statement"  (p.  1)  it  amounts  to  $202,720.  In 
the  "  Original  List "  theve  was  a  claim  of  $30,000  for  "  interruption  of 
voyage  ;""  but  now,  in  addition  to  that  amount,  tliere  is  claimed  a  sum  of 
*144,8(»'.)  for  ^^prospective  earnings.'" 

The  Anna  Schmidt. — This  vessel  was  in  the  "  Original  List"  valued  at 
•*30,000,  which  is  somewhat  less  than  the  average  valuation  \Ve  have 
allowed  in  proportion  to  her  tonnage,  but  in  the  "Kevised  Statement" 
(p.  13)  the  sum  claimed  in  respect  of  the  vessel  is  double  that  amount. 

The  Golden  Eagle. — In  the  "  Original  List "  the  owners  claimed  for  the 
vessel  $30,000,  and  fov  freight  $20,000.  Our  average  estimate  in  propoi- 
tion  to  her  tonnage  was  about  $4.'5,000.  In  the  "Kevised  Statement" 
(p.  40)  the  owners  claim  $80,000  for  I'essel  and  freight,  tlms  ,.ntivi\m,i 
their  claim  by  nearly  oO  per  cent. 

Tne  Highlander. —  She  was  a  vessel  of  1,040  tons,  and  was  in  ballast. 
In  the  "  Original  List"  two  insurance  companies  advanced  claims  for  in- 
surances to  the  extent  of  $30,000,  which  was  probably  about  the  value 


ANNEX    ('. — Ki:POKT   OF    THE    BOAEI)    OF    TRADE. 


:\\1 


,»t"  the  vessel,  but  in  the  "  llevised  Statement"'  (p.  -10)  tlie  owners  i)ut 
toiward  an  additional  claim  for  the  ship  to  the  extent  of  $84,000.  This 
claim  is,  however,  tar  less  extravagant  than  the  claim  for  freight,  which 
in  the  "Origiiml  List"  amounted  to  $0,000;  whereas  in  the  "  Kevised 
Statement"  it  exceeds  808,000,  and  is  aclvanced  without  any  deduction 
whatever,  although  the  ship  was  in  ballast  at  the  time  of  her  capture. 
It  will  be  found  that  at  pages  0  and  27  of  our  lirst  report  we  have  spe- 
liiilly  commented  on  the  character  and  extent  of  tiie  extraordinary 
iloiiiaiids  i)ut  forward  in  respect  of  this  vessel. 

The  Ocean  Rover. — In  tlie  "  Original  List"  the  owners  claimed  $10,400 
for  rdhic  of  ,shi]>,  Ions  of  oil  on  board,  and  damnf/cs  for  breahiiiff  up  o/voi/- 
(ifjc.  The  claims  now  advance''  hi  the  "  Jtevised  Statement"  (p.  08)  in 
respect  of  the  same  losses  exceed  $10.'),000,  the  difference  between  the 
(irigiiial  claim  and  the  more  recent  one  being  made  up  entirely  of 
'•double  chiims  for  ninqle  losses."' 

The  Kate  Col'i/.—ln'nw.  "Original  List"  the  owners  claimed  $27,800 
tor  the  value  of  the  brig,  outfit,  ard  oil  on  board,  and  there  was  also  a 
claim  of  $1,820  for  the  value  of  ''reasonable  i)rospective  catch  of  oil." 
Ill  the  ''  Revised  Statement"  (p.  ~>\)  the  amounts  insured  have,  as  usual. 
been  added  to  the  claims  by  the  owners,  and  there  has  been  inserted  a 
claim  of  $19,293  for  loss  of  ^'■proftpeetirc  catch"  so  that  the  original 
claim  for  $29,020  has  grown  to  $r)0,474. 

The  Lafai/ette,  Xo.  2. — In  the  "  Original  List"  the  owners  valued  the 
ship  and  outtit  at  $24,000,  which  is  less  than  our  average  valuation  ac- 
cording to  her  tonnage;  and  the  secured  earnings  at$10,47."»;  but  in 
the  "  Itevised  Statement "  (p.  'h>)  the  claim  i)ut  forward  in  respect  o^ship 
mid  outfit  and  secured  earninf/s  is  more  than  $89,000 ;  and  the  prospective 
varniujfs  which  were  in  the  "Original  List"  valued  at$3.'>,440,  are  now 
cstinmted  at  a  sum  exceeding  $r)0,00i>.  The  original  claim  for  $09,471 
has  grown  to  $141,858. 

The  liorJiinf/hani. — The  claim  in  the  '•  Oi'iginal  List""  ann)unted  to 
«'10.">,000,  whereas  the  claim  in  the  "  llevised  Statement"  (p.  71 )  exceeds 
•'r'L'25,000.  This  i.-,  also  one  of  the  vessels  which  we  selected  in  our  first 
report  (page  23)  as  a  striking  example  of  the  exorbitan*  Mature  of  some 
of  the  claims.  There  can  be  no  doubt  that  the  origin,  '  nm  was  very 
extravagant,  but  in  the  "Kevised  Statement"  it  has  bee  ;  dmibled  !>y 
imjnoperly  adding  the  insurances  to  the  alleged  values. 

The  Union  Jaelc. — In  the  "Original  List"  it  is  stated  that  G.  i 'otter. 
(iftcr  deducting  the  amount  received  from  the  Atlantic  Insurance  Com- 
pany,  claims  the  sum  of  $7,584 ;  but  in  the  "  Kevised  StatenuMit"  (page 
ni)  he  claims  the  sum  of  $34,520  without  makinf/  any  deduction  for 
insurances,  although  the  insurance  companies  at  the  same  time  claim 
''.'>2,014  in  respect  of  the  amount  insured  by  them :  and  it  then'fore 
dearly  follows  that  a  sum,  at  any  rate  exceeding  $20,000,  is  claimed 
twice  over. 

The  Catherine. — In  the  "  Original  List"  the  owners  claimed  about 
^15,000  for  vessel  and  secured  enrnine/s,  but  made  no  (!laim  in  respect  of 
[ivospective  earnings.  Now  in  the  Kevised  Statement  (p.  229)  there  is  a 
tlaim  ])ut  forward  of  $35,829  for  loss  of  vessel  and  cargo  over  and  above 
•'i'31,070,  the  alleged  amount  of  insurances  by  the  owners,  which  is  also 
at  the  same  time  claimed  by  the  insurance  company.  In  addition  to 
this  there  is  a  claim  for  prospective  earnings  exceeding  $19,000,  so  that 
the  original  claim  of  $45,805  has  now  grown  to  the  enormous  sum  of 
■^272,108. 

The  Favorite.— ^]ie  was  a  bark  of  3!)3  tons.  In  the  "  Original  List"  the 
Atlantic  Insurance  Company,  as  insurers  and  assignees  of  the  owners, 


:^^', 


■RIHPIP 


r»is 


BRITISH    ARGUMENT. 


claimed  for  loss  on  vessel  and  outfit  $40,000,  which  there  can  be  littli- 
donbt  was  the  full  valne.  In  the  "  Kevised  Statement"'  (p.  240)  the  claims 
in  respect  of  the  vcftsel  and  outfit  amonnt  altogether  to  -ftllOjOOO.  The 
master  in  the  "Original  List"  claimed  $1,408  for  the  losn  ojlmeffech  ;  but 
now  he  claims  for  tlie  loss  of  his  personal  jyroiH-rty,  82,230,  and /or  loss  of 
interest  in  oil  and  hone  82,700. 

The  Isaac  Eoirland. — In  the  ''Orjoinal  List"'  the  claim  for prosprcf in: 
earnings  was  853,075,  bnt  in  thu  "  licvised  Statement"'  (p.  247)  it  lias 
grown  to  nearly  four  times  that  sum,  namelj'  to  8100,158.  INEoreover  in 
the  "  Original  List"'  the  owners  claimed  805, 000  for  sliip  and  outiit,  svh- 
ject  to  abatement  for  insurance ;  whereas  in  the  "  Eevised  Statement"  they 
claim  the  same  sum,  bnt  protest  affainst  any  diminution  of  claim  In/  rea.soii 
of  insurance  obtained  by  them,  although  the  insurance  companies  claim  ai 
the  same  time  the  whole  amount  insured  by  then  . 

The  General  Williams. — In  the  "Original  List "  the  owners  claimed 
840,503  as  damaycs  by  the  destruction  of  the  vessel,  over  and  above 
844,  073,  the  amount  of  insurances  received  by  them.  In  the  "  lievised 
Statement"'  (p.  241)  there  is  added  to  the  amount  of  insurances  a  sum  ot 
885,177,  the  claim  being  in  this  manner  all  but  doubled.  Tliere  are  also 
added  the  following  claims:  A  claim  by  the  owners  for  '•'■  prospectivv 
earninys  amounting  to  8100,807;  a  claim  by  the  'naster  for  loss  of  "jjro- 
spcct ire  catch,  time,  and  occupation,'^  amounting  to  820,000;  a  sirmiar 
claim  by  the  mate,  amounting  to  810,000  ;  another  claim  of  830,000,  for 
insurances  on  vessel  and  outfit ;  and,  finally,  the  sum  of  810,000  for 
insurances  by  the  oicners  on  the  vesseVs  prospective  carninys.  In  this  man- 
ner the  original  claim,  which  was  less  than  800,000,  has  grown  to  the 
sum  of  8400,934,  and  has  therefore  been  increased  more  t'lan  sixfold. 

The  instances  we  have  given  are  snflicient  to  indicate  that,  since  tbi' 
year  1800,  the  owners  have,  to  a  very  remarkable  extent,  raised  their 
demands  in  respect  of  the  vessels  and  their  earnings;  but  the  table  (No. 
1)  ai)pended  to  thi.s  report,  which  exhibits  the  amounts  claimed  in  18(it» 
in  the  "Original  List;"  those  claimed  in  1800  in  "the  List  presented  to 
the  United  States  House  of  liepresentatives ;"  those  comprised  in  tin- 
"  Former  Statement"  of  November,  1871 ;  and  those  claimed  in  the  lie 
vised  Statement  of  March,  1872,  will  show,  in  a  far  more  striking  man 
ner,  to  what  an  enormous  extent  almost  every  claim  has  grown  at  each 
of  these  successive  8tr.g<^s, 

After  these  preliminary  observations,  we  proceed  to  analyze  tlio 
revised  claim  of  810,2G0,0()2  ;  and,  following  the  ])lan  adopted  at  page 
13  of  our  first  report,  we  begin  by  directing  attention  to  and  correcting; 
some  mistakes  or  errors  which  appear  to  have  crept  into  the  figures  in 
the  "Kevised  Statement,''  as  they  had  done  in  the  former  statement. 

The  following  have  tlie  effect  of  im]»roi)erl\  diminishing  the  claim. 
and  recpiire  its  total  amount  to  be  increased  : 

Commoinvvallh. — Tlio  additicn  ol"  the  itt'ins  (iia{j<'ll51-lli7)  ;;i\"c.s  ....     ,SJ."):<,  (>l."> 

TIii>  iiinount  ilaimid  in  (ho  .Suinniary  (payi'  '.VM)  is -l.Vi, ()4'i 

Thus  ffivini;  a  tliU'tneiicc,  which  lias  to  he  added,  <tf "^l,*'"' 

Corri-sH  Jhh. — The  acUlitioii  of  the  items  {\n\yH'  147)  yives "J.'t,  400 

The  total  aiiiouiit  of  tin;  claim  is,  however,  stated  at "i.^jOdO 

Thus  {^iviiif^  a  diti'eience,  which  has  to  he  added,  of 4"" 

MoniiiKj  Star. —  In  the  Revised  .Statement,  paf^e  ()4,  the  claim  ad- 
vanced is  ^.'>,()14.4(),  yold,  whereas  on  the  statement  on  Avhicli  we 
have  reported  it  was  ;|<7,744,  viinriicji,  thus  j^iviny  rise  to  an  ap- 
jiarent  «litVereneo  of  .*'i,liil(.l)0.  Ihit,  for  the  jmrpose  of  coniparinj^ 
the  two  statements  w  itli  oni^  another,  it  will  be  proper  to  keep 
I  he  amount  in  currency,  and  therefore  necessary  to  adil '-'  •■"' 

Therefore  the  total  sum  t()lie  added  is 4,  l-l^i 


o 

evly 

('nun 
The 
Thi 

L(vi 
aiii 
the 
I'tfe 
not 
in?i 
the 


ANNEX  C. RErOKT  OF  THE  BOARD  OF  TRADE. 


:U9 


Oil  the  other  hand,  the  foiiowing  errors  have  the  eft'ect  of  improp- 
erly increasing  the  claim,  and  require  its  total  amount  to  be  reduced  : 

Cnitrser. — Tlic  addition  of  tbc  items  (pjiffe  31)  gives s'\2, 307 

The  amount  claimed  in  the  .Summary  (payo  '.I'M)  is ',VA,  'W7 

Thus  giving  a  ditfereuce,  Avhieli  has  to  be  deducted,  of •■^1,  (H)0 

Idi  Starhucl: — (Page  50.)  In  this  cl.v.ai  there  is  an  error  to  tiio 
aiiiount  of  |<23,3o0  of  the  strangest  character.  After  the  claim  by 
tlio  owners  there  is  inserted  a  memorandum  that  the  insurances 
cliected  amounted  to  .'5i'<J3,350  ;  a  memorandum  wliich  was  indeed 
not  necessary,  inasmuch  as  that  same  amount  is  claimed  by  tlireo 
iiisurauce  companies;  yet  that  sum  of  $'23,350,  (so  referred  to  in 
the  memorandum,)  as  well  as  the  lilio  amount  claimed  by  the 
insurance  companies,  is  made  to  form  part  of  the  total  claim. 
Tliis  strange  mistake  mu^'  of  course,  be  corrected  by  deducting 
the  sum  of •^3.  :{5(  i 

Ikcan  liiccr. — (Page  68.)  An  exactly  similar  mistake  to  that  which 
we  have  just  noted  presents  itself  in  this  case.  The  sum  of 
?i24,710,  wliich  is  referred  to  as  "the  amount  of  the  insurances" 
bt'ing  added,  although  the  same  amount  is  claimed  by  the  insur- 
ance companies.    We  have,  therefore,  to  deduct  the  sum  of "Jl.Tlu 

Sen  Larl: — (Page  78.)  An  exactly  similar  mistake  of  adding  to  the 
iuuounts  claimed  by  the  insurance  companies  tlie  sums  mentioned 
by  the  owners  as  "  the  amounts  of  the  insurances "  presents 
itself  in  this  case,  and  renders  necessary  a  deduction  of 7,  O^U 

i'liion  Jack. — The  addition  of  the  items  (page  110)  gives 17*2, 175 

Tlie  amount  claimed  in  the  Summary  (page  330)  is 17'^,  5i35 

Thus  giving  a  ditfeience,  which  has  to  be  deducted,  of GO 

Crown  roint. — The  addition  of  the  items  (page  148)  gives 417,903 

The  amount  claimed  in  the  summary  (page  337)  is 417, 913 

Thus  giving  ii  ditl'erence,  which  has  to  be  added,  of H  • 

M.  J.  Colrord. — (Page  186.)  There  is  an  eiTor  in  addition  (which 
we  notice  only  for  the  i>urpose  of  keeping  our  tigures  accurate) 
amounting  to 1 

To  these  errors  have  to  be  added  those  adverted  to  at  page  13 
of  our  former  report,  which  have  not  been  corrected,  viz,  those 
occurring  in  the  cases  of  the  General  Williams,  Gypsy,  and  Pearl, 
which  errors  are  repeated  in  the  "  Revised  Statement,"  and 
amount  to 1'23,  346 

rho.-.e  errors  require,  therefore,  the  claim  to  be  altogether  reduced  by  the 
sum  of 180, 457 


We  have,  therefore,  to  deduct  the  last-mentioned  amount  from,  and  to 
add  the  before-mentioned  sum  of  $4,133  to  Sl9,y60,062,  Avhich  is  the 
total  amount  of  the  claims  in  the  "  Revised  Statement,"  exclusive  of 
the  claims  styled  *'  miscellaneous,"  and  those  for  "  increased  insurance 
premiums."  Having  nmde  the  necessaiy  subtractiou  and  addition,  we 
arrive  at  the  corrected  amount  of sVJ,  0-3,  T:'.!- 

As  compared  with  the  corrected  amount  of  the  claim  in  the  "  Former 
Statement,"  as  ascertained  at  page  13  of  our  iirst  report 17,763,91ii 

allowing  therefore  an  increase  of  claim  in  the  "Revised  Statenumt,'" 
iiiiiounting  to I.:il9,  828 


i:  m 


.  ■■■% 


■f 


Adopting,  as  in  our  first  report,  the  classes  A,  B,  C,  D,  E/F,'whicli 
wo  theie  defined,  and  under  whicli  we  arranged  the  various  vessels,  the 
corrected  amounts  of  claims  in  the  "Former"  and  iu  the  "Itevised 

'In  the  "  former  statement,"  although  there  were  the  same  memoranda  in  the  cases 
'if  tlie  Levi  Starbuck,  Ocean  Rover,  and  Sea  Lark  n'^  there  are  iu  the  "  Revised  State- 
ineut,"  the  errors  above  pointed  out  were  not  made. 


-■••(. 


mmimi^miw 


o 


\'20 


BRITISH    AR(iU:MENT. 


Statc'uient.s "  respectively,  together  with  the  inorcfse  of  claim 
hitter  statemeiitj  may  be  exhibited  in  the  foUowiug  form  : 


in  th 


*».2 

11 

s  ?  s 

S  s  5 


il 

a  1^ 


'^  So 

0)  ?  s 

s<  a  s 

0-3  CC 


I  !„ 


A S8, 147, '.ir)2  '  88,07:5,810  | 

n :?,107,142  I    •>,fi()7,G19  I 


c . . . . 
D... 
E.  F. 


(5, 4m,  922 
88V,  8:31 
nOl,  481 


5, 794, 687 
730,959  I 
29(5,8:55  I 


-V. 


87:i,  :>:,•> 
2:59,  .-)•.':; 
(i42, 2:1:. 

207,  (i4ii 


19,083,7:58     17,7(W,910  i       1, 319,  Hi- 


5,1 » 


It  is,  however,  to  be  observed  that  in  order  to  ascertain  the  amount  of 
the  additional  claims  actually  advanced  in  the  "  Ilevised  Statement,"  we 
must  take  into  account  the  fact  that  in  this  statement  the  claims  in  re 
spect  of  four  vessels  have  been  withdrawn,  and  those  in  respect  of  th.  ie 
others  have  been  reduced.    In  these  cases,  namely,  of  four  of  the  eight 
bonded  Avhalers,  (belonging  to  Class  A,)  captured  by  the  Shenandoali. 
the  claims  comprised  in  the  "  Former  Statement,"  amounting  to  -^L'OS. 
990,  have  been  entirely  withdrawn  ;  in  the  case  of  the  Altamaha,  (be 
longing  to  Class  A,)  captured  by  the  Alabama,  the  claim  has  been  re- 
duced by  81">,4o0 ;  in  that  of  the  Avon,  (belonging  to  Class  B,)  captured 
by  the  Florida,  the  claim  has  been  reduced  by  807,000 ;  and,  fuially. 
in  the  case  of  the  Emma  Jane,  (belonging  to  Class  D,)  captured  by  the 
Alabama,  the  claim  has  been  reduced  by  80,000. 

In  order,  then,  to  determine  tlie  amount  of  the  additional  claims  com- 
prised in  the  "  Eevised  Statement,"  we  must  evidently  deduct  the  above 
sums  from  the  claims  made  in  the  former  statement,  before  comparing 
them  with  those  in  the  lievised  Statement,  and  in  this  manner  it  <;aii  be 
shown  that  the  additional  claims  may  be  exhibited  in  reference  to  their 
amount  and  distribution  in  the  following  table: 


(»■ 


III 


ifl'crenoe  to 


A  . . . . 
15.... 

(" 

D... 

K,  V  . 


Sa97.  !H1!) 
:ton,  M-i 
l<i%  235 
1  •!.">.  .■'T-J 
•,>07,  fi-lti 


l,t;-2ii,-J74 


111  ift'iTtiiec  to  1  riiisei's. 


In  veforence  to  interests. 


1 

Aliibama 

..  .■5-140,  Of!!) 

rioriila 

..    ir,-y,!fn 

Taciinv 

(i:i,  e9-j 

t'liireu'iu' 

. .      :<!),  ii-i-i 

('.porfiia 

..      32. 1H4 

Cl)i«'kanin«j;a . 

.       f7, 410 

Shouandoali  . . 

.       145,141 

TaHahaHHPe. . . 

. .     150,  B46 

IJetiibiitioii... 

8,  683 

NaslivUlp 

.       38.  »?97 

-left'.  I)avi.s  .... 

7,752 

Suiutor 

..     14i»,041 

1, 620,  274 

Vessels  and  insurances  on  do iM>'. """ 

Frci(flit  and  insuranees  on  do HO, O-J 

Secured  protipeetive  earnings  and  iusurauocs. .  If*!.  1" ' 

Carjio  and  insurances  on  do 4":i.  ■•J'' 

Pei'sonal  ett'ects 7i*,  ■!*■ 

Dania''e8 !'"■ "" 


i,(i-iO.-j:4 


We  now  proceed  to  consider  the  amounts  of  the  additional  claims  as 
stated  and  arranged  in  the  first  column. 


ANNEX  C. RFPORT  OF  THE  BOARD  OF  TRADE. 


321 


Class  A. 


st:i,  .V,'.' 
ir.(5,87-.' 

'J(»7,{i4i.i 

l,:U9,S'h 

Thtne  is  one  alteration  in  the  "  Revised  Statement'' of  some  importance 
whicli  we  have  already  referred  to.  In  the  claim  in  respect  to  the  Alta- 
maha,  (which  Avill  be  fonnd  commented  on  at  page  19  of  our  first  report 
as  one  manifestly  extravagant,)  in  addition  to  the  claim  by  the  owner  of 
m12,U00  for  the  brig  ar  d  her  outfit,  there  was  a  claim  in  respect  of  the 
brig  advanced  by  "  u.i  agent''  amounting  to  $15,450.  This  latter  claim 
ks  been  withdrawn,  so  that  the  total  claim  in  the  "lievised  Statement" 
is  reduced  by  that  amount,  and  the  sum  now  claimed  for  the  vessel  and 
her  outfit  is  $11*,000,  which  is  only  8100  more  than  our  allowance  of 
slOO  per  ton  would  give. 

lu  the  "  Former  Statement  '  the  claims  in  this  class  were  : 

In  respect  of  41  whalers,  ainoiinting  to s7,4;r),74:{ 

In  respect  of  (5  fishiiijj-vessols,  aiiioiiiitiiifj  to 4"i,m>l( 

lu  respect  of  8  whalers  "  honded  "  or  detained,  aniountiiij^  to. .         r)l>'>,  747 

Therefore  the  total  claim  in  the  '•  Former  Statement "  ainoui.t 
ed  to 8^,073.810 


But  there  have  been  withdrawn  the  claims  for  4  out  of  the 

•;  "  bonded"  whalers,  amounting  together  to 

Ami  the  claim  in  respect  of  the  Altamaha  has  been  reduced 

by 


20r',  9% 

ir,,  4r)0 


Leaving  therefore  the  amount  of 


,  H40, 304 


Which  amount  has  to  be  compared  with  the  corrected  anmant 
of  tire  claims  in  Class  A,  coutaiued  in  the  "Revised  State- 
meut,"  that  is  to  say,  with 


Therefore  the  total  amount  of  the  aditional  claims  in  Class  A, 
coutaiued  iu  the  Jievised  Statement,  amounts  to 


These  additional  claims  consist  of — 
New  Claims,  that  is  claims  in  respect  of  vessels  not  meutioued 
iu  the  Former  Statement,  amounting  to 

And 

i'i(i(/ier  C/ni»i8,  that  is,  claims  in  respect  of  vessels  which  arc 
uiL-ntioued  iu  the  Former  Statement,  viz  : 

u()  For  vessels  and  outfits 

[b)  For  secured  earnings 

(()  For  prospective  earuings 

((/)  For  danuiges 

(()  For  personal etlects 

(living  as  before  a  total  of 


$8, 147,  303 


$•^97, 901> 


8, 203 

30, 7f*l> 

!.')('.  U4 

5;-),  m) 

23, 29H 


§30, 20') 


207, 704 
297, 9it9 


I.  As  regards  the  Further  Claims.  In  our  First  Report  on  Class  A  we 
iiilly  provitled  for  all  losses  sustained  in  respect  of  the  vessels  and  outfits^ 
their  secured  and  prospective  earnings  («,  b,  c.)  Wo  therefore  see  no 
leasou  why  any  allowance  should  be  made  on  account  of  these  Further 
Chtims,  but  it  may  be  worth  while  to  observe  that  so  far  as  they  relate 
to  the  vessels,  they  can  almost  all  be  proved  to  arise  from  insurance 
companies  and  the  owners  simultaneously  putting  forward  claims  for 
the  same  sums ;  that  the  additional  claims  for  prospective  earnings  are 
advanced  by  three  vessels,  the  La  Fayette,  Catherine,  General  Williams, 
for  the  prospective  earnings  of  which  enormous  sums  were  already  claimed 
iu  the  »  Former  Statement,"  and  which  will  be  found  specially  referred 
21c 


fl^ 


322 


BRITISH    ARGUMENT. 


i|:i^ 


m- 


ti': 

to  at  pa jfcs  317  and  ,'U8  of  tins  llcport,  as  illustratinf;  tln^  rcMiiarkablc 
extent  to  which  the  owners  have  increased  their  claims  since  the  year 
18GG. 

The  item  of  $55,200  for  danuufcs  coini)rises  claims  for  Joss  o/time,  icaycs^ 
and  occupation.  These  must,  for  reasons  stated  in  our  First  Keport,  W 
disallowed,  but  it  may  nevertheless  be  useful  to  cite  some  instances  in 
order  to  show  the  nature  and  extent  of  the  claims  advanced  under  this 
head. 

The  Master  of  the  Edward  Carey  claims  jj<  10,000  as  damages  for  loss 
of  time  and  occupation ;  the  Mate  of  the  I'earl  and  a  Cooper  on  hoard 
the  same  vessel  claim  respectively  $5,000  and  $1,200  for  loss  of  time: 
the  Mate  of  the  liCvi  Starbuck  claims  $0,000  for  loss  of  time. 

\s  regards  the  claim  of  $23,228  for  loss  of  personal  effects^  by  far  tlic 
greater  part,  namely,  $18,34(»  is  advanced  in  respect  of  losses  occasioned 
by  the  captures  made  by  the  Shenandoah.  It  will  be  found  in  our  First 
Eeport  on  Class  A  that  we  considered  the  claims  for  loss  of  personal 
effects  occasioned  by  the  captures  made  by  the  Shenandoah  to  be  very 
extravagant,  and  that  we  consequently  made  a  ratable  allowance  tor 
these  claims,  while  we  passed  those  in  respect  of  vessels  captured  by 
the  other  cruisers.  We  see  no  reason  for  allowing  anything  more  lor 
personal  effects  alleged  to  be  lost  by  reason  of  captures  by  the  Shenan- 
doah; but  to  show  the  exorbitant  nature  of  the  adtlitioiial  claims  oi 
$18,34G  we  will  mention  that  the  blaster  of  the  Catherine  claims  $3,<iL*5: 
the  First  Mate  of  the  Isaac  J  lowland  claims  $3,227 ;  and  the  Master  of 
the  Fearl  claims  $5,350. 

With  respect  to  tlie  further  claims  i'ov  personal  effects  in  the  cases  ot 
the  other  whalers  we  propose  to  pass  them,  with  the  excei>tion  of  those 
by  the  Master  and  Mate  of  the  Nye,  (a  vessel  of  211  tons,)  amountin}; 
together  to  $2,023.  We  thiidc  that  $750  will  be  an  ample  allowance  tor 
these  two  claims.  These  considerations  will  give  $3,000  as  the  total 
allowance  in  respect  of  the  Further  Claims  for  personal  effects. 

II.  As  regards  the  N^ew  Claims,  that  is,  claims  in  respect  of  vessels* 
not  mentioned  in  the  "Kevised  Statement."  These  consist  of  four  fishing- 
vessels,  alleged  to  have  been  destroved  by  the  T.allahassee,  vi/:  the 
Etta  Caroline  of  39  tons,  (p.  280  of  the  ''Revised  Statement,")  the 
Floral  Wreath  of  54  tons,  (p.  281,)  the  Magnolia  of  30  tons,  (p.  285,)  and 
the  Pearl  of  43  tons  (i>.  280,)  and  two  fishing- vessels,  the  Itipple  of  04 
tons,  (p.  210,)  and  the  Archer  of  02  tons,  (p.  207,)  the  former  of  which 
is  stated  to  have  been  destroyed  by  the  Taconj-,  and  the  latter  of  whieh 
is  alleged  to  have  been  detained  by  the  same  cruiser  and  to  have  lonflier 
outfit. 

In  respect  of  the  first  fowrfisking- vessels  destroyed  by  the  Tallahassee 
the  claims  for  the  value  of  the  vessels  amounts  to  $16,200,  and  the  claim 
for  secured  earnings  to  $000.  We  propose  to  allow  this  last  claim  of  $900 
and  the  claim  of  $2,700,  the  alleged  value  of  the  Magnolia  and  read,' 
and,  estimating  the  value  of  the  lOtta  Caroline  and  Floral  W^reath  at 
the  rate  of  $50  per  ton,  in  accordance  with  our  First  Keport  on  Class  A, 
to  allow  for  their  values  $4,050,  so  that  our  proposed  allowances  in  re 
spect  of  the  four  fishing-vessels  destroyed  hy  the  Tallahassee  amount 
altogether  to  $8,250,  whereas  the  claim  amounts  to  $17,100. 

As  regards  the  Kipple  and  the  Archer,  the  two  fishing-vessels  eap 
tured  by  the  Tacony,  the  claim  in  the  '"  Kevised  Statement"  in  resped 
of  the  former  for  vessel  and  catehings  on  hoard  is  $8,805,  that  in  respect 

'  This  VfSfu;!  I't-arl  is  a  diflereiit  vessel  Iroiii  tliat  referred  ti»  above, ;  llie  elaiiii  in  rt- 
spectoi'  tlie  former,  whieh  is  a  small  lishiofi-vessel,  is  at  paj^e  2C:(i,  and  the  claim  inii- 
Bpect  of  the  latter,  whieh  is  a  bark,  is  ut  p.  '^iV.). 


ANNEX  C, REPORT  OF  THE  BOARD  OF  TRADE. 


323 


(tt  the  Archer  for  outjits  lost  is  $2,500,  .and  for  loss  of  time  $1,800,  so  that 
tilt'  total  claim  in  respect  of  these  two  fishing- vessels  is  $13,105. 

Ill  accordance  with  our  First  Ueport  on  Class  A  we  in'oposo  to  allow 
for  the  value  of  the  Uipple  and  her  outfit  at  the  rate  of  $50  ])er  ton 
({jiving  $;?,200,)  and  for  the  outfit  of  the  Archer  at  the  rate  of  $20  per 
roil  (giving  $1,210,)  and  for  the  catchimjs  of  the  ]{ipi)le,  and  the  detention 
ot'  the  Archer,  we  propose  to  allow  the  sum  of  $*.K)0  each. 

We  thus  find  that  the  total  amount  to  be  allowed  for  the  ]{ipj)le  and 
riio  Archer  will  be  $(5,240. 

The  result,  therefore,  is  that  for  the  New  Claims,  amounting  to  $30,205, 
we  propose  to  allow  $14,490. 

Adding  to  that  .amount  the  sum  of  $3,601>,  the  above-mentioned 
allowance  for  tha  Further  Claims,  we  find  that  our  allowance  for  all  the 
additional  claims  in  Class  A,  comprised  in  the  "  Revised  Statement,"  is 
.41S,()90. 

The  above  results  may  be  exhil>ited  in  the  following  form  : 

Claiiiis.  l'i'o|M)il  A  How's. 

SfH-Vlaimx IHO,  2(tr>            fil4,4IK» 

rtitthcf  Cliiimn — 

I  a)  VeHSc.ls  aiul  outlits !&iS,  •2(!'.$  

/ii  S(;cnr»!(l  ciiniinjjs liO,  7W>  

i)  I'rospectivts  eiiiiiiiigs loO,  IU4  

.(f)DamiiK<-s Tm.'SOO  

i.iIVrsoiiiil  etlWtH ;V2,'2'2H  :5,  (509 

'2()7, 7«t4  


4» 


',i? 


•297,  <t!Ht 


18,  m) 


Class  B. 


We  will  now  jn'oceed  to  report  on  such  claims  comiuised  in  the  "]te- 
\ised  Statement"  as  are  to  be  referred  to  Class  B,  that  is  to  say,  the 
eliiss  of  vessels  loaded  tcith  given  specific  cargoes;  and  we  begin  by  notic- 
ing an  exceptional  case  in  which  a  somewhat  important  reduction  is 
made  in  the  claim.  It  will  be  found  at  page  22  of  our  First  Keport  that 
we  selected  the  Avon  as  a  case  illustrating  the  extravagant  nature  of 
some  of  the  demands  under  this  Class  B.  She  was  a  vessel  of  900  tons, 
and  the  total  claim  in  respect  of  ship  and  freight  in  the  "  Former  State- 
ment" amounted  to  $130,000.  We  allowed  for  the  vessel  $3G,000,  and 
tor  the  freight  $25,000 ;  so  that  the  total  allowance  was  $61,000.  In 
the  "Kevised  Statement,"  the  claim  has  been  reduced  from  the  afore- 
mentioned sum  of  $130,000  to  $03,000,  being  only  $2,000  more  than  our 
allowance. 

In  tlu!  "Former  Statemeut"  the  claims  in  tliis  chiss  amounted 

to , |'2,  8(17,  (Hit 

Hut  the  claim  iu  respect  of  the  Avon  has  been  reduced  by G7,  OUO 

Leaving,  therefore,  the  amount  of $2,  800,  Ciy 

t<>  lie  eouipared  with  the  corrtieted  amount  of  claims  in  Chiss 

r>,  contained  in  the  Revised  Statement,  amountinj;  to '•^,  107, 141 

Tlicrefore.  the  total  amount  of  the  additional  claims  in  the  Ke- 

visfd  Statement  is SOfi,  522 


And  it  consists  of: 

i'l)  Additional  claims  for  value  of  vessels,  (including  insurances).. $1(')1, 642 
i'')  Additional  claims  for  value  of  freights,  (including  insurances)..  39, 2:W 
(')  Additional  claims  for  value  of  cargoes,  (including  iusurauces)..     87,706  }■  |306,  r)";i2 

t <';  Addit iomil  claims  for  damages 7, 183  I 

(i)  Additional  claims  for  personal  etfects 10, 758  J 


|.  iipnu  iin    -     n»,i  1         1 


m 


^: 


m 

IS' 


324 


mUTlSII    ARGUMKNT. 


As  roganls  tho  item  (a,)  tlio  additional  claims  for  the  vesnels^  it  con 
si.sts  of  !?40,()()0  claiiiu'd  by  owners  or  iiisuraiK^o  companies  over  ami 
above  tlieir  claims  in  the  '  Former  Statement;''  of  $17,442  for  vessels 
not  mentioned  in  tho  "  Forinei'-  Statement;"  of  $104,200  for  rcsHcIs  tlic 
vahie  of  which  was  not  claimed  for  in  the  "  Former  Statement,"  althouj^li 
claims  in  resi)ect  of  thviv  cargoes,  or  other  matters  connected  with  tluMii, 
were  advanced. 

Tho  tirst-mentioned  part  of  tiie  claim,  amounting  to  $40,000,  nnist, 
of  conrse,  be  rejected,  as  tlie  estimate  of  ••"'10  per  ton  which  wn  made  in 
onr  First  JJeport  will,  ni  our  opinion,  attbni  an  adecpuite  allowance  for  the 
value  of  the  vessels. 

Tho  second-mentioned  i)art  of  the  claim,  amountinfj  to  $17,442,  is 
for  the  Otter  Jiock,  (paj;t!  12;J,)  the  Arcade,  (i)a^e  200,)  and  the  E.  V. 
Lewis,  (paye  27!>.)  Althou}»h  in  none  of  these  cases  any  tonnage  is  j^iven 
or  other  means  atlbrded  to  arrive  at  a  .judj^ment  of  the  values,  never- 
theloss,  iiiasumch  as  it  would  not  be  prudent  or  proper,  for  the  purposes 
of  our  IMesent  IN-port,  to  reject  these  claims  altogether,  we  have  esti 
mated  the  value  «>f  the  vessels  by  makin<;"  a  deduction  proportionate  to 
Aviiat  we  found  in  our  First  Heport  on  Class  1>,  to  represent  the  overvalii 
ation  of  all  the  vessels.  The  deduction  so  arrived  at  amounts  to  $G,84l', 
leaving  ns  the  allowance  to  be  made,$10,S0(>. 

As  rcinards  tlu'  last-mentioned  portion  of  the  claim  for  $104,200,  it  will 
be  found,  in  the  note  at  ita^^e  20  of  our  First  Iteport,  that  in  Class  ii  tlieic 
were  live  vessels  the  values  of  which  were  not  claimed.  In  the  "  Itevisod 
Statement,"  claims  are  now  advam^ed  for  three  of  these  vessels,  viz,  the 
31.  L.  Potter,  of  40()  tons,  (pa^-e  122,)  the  AVindward,  of  100  tons,  (pa.uv 
204,)  aiul  the  Lamont  Dupont,  of  195  tons,  (i)a};e  2S.j.)  Accordin<;ly,  for 
the  values  of  these  vessels  of  an  aggregate  tonnage  of  7oo  tons,  we  now 
make  an  allowance  at  our  ordinary  rate  of  $40  per  ton,  amounting  to 
$30,200,  ami,  adding  this  to  the  afore-mentioned  sum  of  $10,800,  wc 
tind  that  there  should  be  allowed,  in  resiiect  of  the  claim  of  $101,04:' 
for  the  value  of  the  vessels,  {a,)  the  sum  of  $41,000. 

As  regards  the  item  (/>,)  viz:  the  additional  claim  of  $39,233  ftn 
freif/hts  and  insurances  thereon,  it  is  divisible  into  $8,477  claimed  l>y 
owners  or  insurance  companies  for  freights  over  and  above  their  claims 
in  the  '•  Former  Statement;"  of  $1,250  for  freights  in  respect  of  vessels, 
not  comprised  in  the  "-Former  Statement;"  of  $29,500 claimed  for  freights 
of  vessels  (for  the  lirst  time)  in  the  "  Itevised  Statement,"  although  other 
claims  connected  with  those  ships  were  advanced  in  the  Former  State 
ment. 

The  iirst-mentioned  i»art  of  this  claim,  $8,477,  must  be  rejected,  siiire 
we  have  already  made  allowance  in  our  former  report  for  losses  in 
respect  of  freight. 

The  secondly-mentioned  part  of  the  claim,  $1,250,  we  propose  to  pass, 
as  it  does  not  appear  to  us  to  be  very  excessive. 

The  last-mentioned  part  of  the  claim,  $29,500,  is  made  up  of  $(5,000  in 
respect  of  the  M.  L,  Potter,  $5,000  in  respect  of  the  I.  Littlefield,  ami 
$18,500  in  respect  of  the  Gildersleeve,  for  which,  in  the  Former  Stato- 
ment,  no  claims  were  advanced;  and,  consequently,  no  allowance  lia;* 
yet  been  made.  We  have  shown  in  onr  First  Iteport  that  the  claims  for 
f)ross  freight  cannot  be  admitted,  and  we  ])ropose,  instead  thereof,  to 
wake,  in  accordance  with  the  principles  stated  iu  our  First  lieport,  tho 
ample  allowance  of  $6,000. 

As  regards  item  (e,)  viz :  the  additional  claim  of  $87,700  for  cargo  awl 
insurances  thereon,  the  amount  of  the  insurances  being  $72,197.  Tho 
same  difficulties  which  we  explained  in  our  First  Report  of  course  present 


AXXKX    r. — REPORT    OF    TIIK    HOARD    OF    TRADE. 


325 


tlit'iiisclves  hero  also  in  rcsiH»ct  of  the  carpoos ;  and,  althon;:;!!  (as  we 
shall  show  when  discussinj'-  the  additional  claims  nnder  Class  C)  there 
are  Jiiany  reasons  for  inferrin}:?  from  the  adtlitional  claims  made  in  the 
Revised  Statement  that  our  <lediiction  of  111  per  cent,  will  probaMy  prove 
to  be  very  inadequate,  we  think  it  better  for  the  i)urpo.se  of  this  provi- 
sional estimate  to  abide  by  the  rule  we  have  hitherto  adopted. 

As  rej^ard.s  item  {(I,)  vi/ :  the  (!laim  of  *7,1.S3  for  (lamtttirs,  it  is  pre- 
sented in  respect  of  one  ship,  (the  Emily  Fislier,  page  L'--,)  tiie  tonnaj^e 
of  which  is  not  given,  and  it  is  described  as  a  vlttim  for  purt'ial  destntc- 
tion  of  the  vessel,  Jot'  loss  of  frchfltt,  for  loss  paid  otrners  of  cnnjo,  and  for 
Itm  {paid  e.vpenscs,  cf-c.)  on  vessel.  The  ship  is  described  in  the  "  Jtevised 
Statement''  as  having  been  captured  by  the  "  Ketribution,"  and  run 
ashore  on  the  Acklin  Islands,  wliere  slie  was  pai'tially  destroyed; 
whereas  in  the  "  Former  Statement"  no  mention  whatever  was  made  of 
her  having  been  run  ashore,  nor  was  any  reference  made  to  any  claim 
advanced  for  dammje  to  the  ship,  although  a  particular  description  was 
given  of  the  injur}/  sustained  by  the  caryo.  Considering  the  peculiar  form 
in  which  the  claim  is  presented,  and  that  if  the  ship  had  in  fact  sus- 
tained injury  for  which  the  owners  had  not  already  received  compensa- 
tion, those  owners,  who  are  stated  to  reside  in  Xew  York,  would  in  all 
probability  have  advanced  claims  at  an  earlier  moment  than  the  loth 
April  last,  we  are  of  opinion  that  this  claim  should  be  entirely  rejected; 
and  it  api)ears  to  us  that  the  propriety  of  this  view  is  much  conlirmed 
by  the  fact  that  a  considerable  portion  of  the  additional  claim  is  alleged 
to  be  for  loss  paid  to  owners  of  cargo,  and  that  the  latter  claim  for  loss 
of  cargo  ><0,'5r>L'.2(J,  while  the  insurers  on  cargo  claim  e.vacthj  the  same 
amount. 

Finally,  as  regards  item  (<',)  viz:  the  claim  of  810,7.")8  for  personal 
(feets,  we  propose,  as  in  our  First  l*e[)ort,  to  go  through  the  dillerent 
eases,  and  to  state  when  we  think  that  any  deduction  should  be  made ; 
merely  premising  that,  in  estimating  the  deduction,  we  have  taken  into 
account  the  tonnage  and  character  of  the  vessel,  the  form  in  which  each 
clrtim  is  presented,  as  well  as  other  circumstances  which,  in  certain 
cases,  appear  to  us  material,  but  which  it  is  not  necessary  to  point  out 
specitically. 

I.dfiiiiclte. — Here  tlie  claim  by  the  mate  for  $700,  wliicli  is  more  than  that  advanced 
iiy  tlic  Captain,  appears  to  us  excessive.  We  propose  that  it  sliouhl  he  reduced 
hy i=i:W. 

.V.  L.  I'olto: — W(i  ])ropos(s  no  reduction. 

.iron. — In  this  case  the  Master,  in  aildition  to  his  I'ornier  claim,  which  (as  will  he 
'<i'cn  on  reference  to  our  First  Report,  pajje  '2\)  ai»peared  to  us  exorhitant,  has 
advanced  a  claim  of  $tiOO.  Wtj  propose  that  this  should  he  rejected.  Tiiis 
will  re(iuire  a  d»;duction  of '200 

f^iitiihrni  ('rons. — Wc  propose  no  deduction. 

Simiii. — Hero  the  Mate  claims  for  losn  of  perxoiiul  cffrctK  and  ic((//(n-,  sl.VJ.  For 
reasons  fully  stated  in  our  First  Report  tlie  claim  for  \va;?cs  must  he  disallowed, 
and  we  purpose  to  allow  in  respect  of  the  lo.tn  of  cffirtu,  $v200,  makinj;  a  tlcduc- 
tion  of -"^r) 

Atlniith: — In  tliis  case  the  Master  claims  for  loss  of  firijihf,  ftlon-s,  pcrnniial  tffcvly, 
^Tit.");  the  Mate  claims  JiJiUir) ;  and  tiireo  seamen  claim,  respectively,  814.'), /'wr 
loxK  vf  jurwiial  effects.  SVe  propose  to  allow  in  respect  of  the  Master's  claim, 
'*:iO0.  We  juopose  no  deduction  in  the  case  of  the  claim  made  by  the  Mate. 
The  claims  by  the  seamen  appear  to  us  to  re(|nire  a  deduction  of  .y2"25.  The 
ctfect  of  makinjf  these  several  allowances  will  be  to  allow  in  all,  §()7.'"),  and  to 
make  a  deduction  altOf;«ther  of 7'20 

■'</i(itrtiie.— We  do  not  propose  that  any  deduction  should  be  madcs 

(hiviita. — Here  we  iiiul  a  claim  of  |4,tMl  for  loss  of  penonal  (ffi.'('t.><  l)y  Henry  W. 
Johnson,  who  is  merely  described  as  of  Stamford,  Connecticut.  We  think 
that  so  vaKue  and  large  a  claim  for  pet'soual  effects  ])ut  forward  at  the  last  mo- 
ment is  not  likely  to  be  a  boiia-Jide  claim,  and  that  it  should  therefore  be  disal- 
lowed, making  a  deduction  of 4, 941 


^ 


I 
1 


-!» 


■Plpplpplffpl 


;j-j(; 


lUlITIsn    AUCW'MKNT. 


H'iiidiraiit,—  h\  MiIh  ciiMt!  tlio  MiiMlor  fliiiniH  for  Iohh  of  pimonol  vfficlH,  ,*'i()(>.    Tliis 
!il»lMMirM  to  [\H  tixttuxannut,  aixl  we  propono  tliiit  a  tlctliiflioii  sliuiiltl  In-  muiU'or    SI".) 

Tlu'so  (UMluctions  will  hv  tbiind  to  hmIiico  tho  claiiii  of  !!<10,7."iS,  tor 
jH't'sonal  ([(f'lrts,  to  lj'.'{,4.'i2. 

Tlici  n.'siilt,  tlicivforo,  at  which  wo  hiivo  uiTivod  in  respoft  of  tin' 
chums  coinpiiscd  in  Chiss  II  may  hv  exIiihittMl  in  the  followiii};  form: 

Cliiiiiis.         rri)|niii.| 

llllllWlllll'<'< 

(«()  For   vcHScls ^(.•=(1  »),(■) I-,'  fll.lMil 

(h)  h'or  trt'inlits ' j  :\[t,'SV.i  :.•,•:,(, 

(r)  h'or  carjfonH if  >'7,7()(J  Tt),  Ivj 

((0  For  tlaina]in's 7,  1^:!       

((•)  For  pcrNotial  cllccts H),  7riS  :!,  4:j-,> 

:iOt»,  W'^i         l-.'7,  -^T I 


Class  C. 

Ill  (lio  ''  Former  Statement"  the  claiiim  compriMcd  in  this  eiaiss 

amonnt  to i:r>,  7'.M.  ii«r 

In  tho  "Revised  Statement"  tiio  ehiiniMeompriseil  in  thin  chm.s 

amonnt  to §(1, 44:i,  370 

Unt  tho  errors  pointed  out  at  ]mgv  lUH  of  this  Keport  in  respeet 
of  tho  Commonwealth,  Sea  Lark,  Union  Jaek,  Crctwn  I'oint, 
antl  Colcord,  vessels  behtnyinj;   to   this  elass,  re((nire  alto- 

getlior  a  deduction  of (i,  418 

So  that  the  correcte«l  amount  of  claim  in  tho  "  Kevised  State- 

mont  "is t),  4:5r>,  !W 

Tliereforo  tho  total  amount  of  tho  additional  ehiims  in  the  "  Ue-  

vised  Statement"  is (il'J/ir, 

And  it  consists  of  :  --— 

(  Additional  claims  for  vessels,  anKumtinj^  to  $104,<)51  ) 
fl.  •?  Additional  claims  for  insurances  on  vt^ssels,  •:ii!l7'J,();VJ 

(  amouutiiiK  to      f)8, 001  > 

i  Additional  claims  for  freiirjits,  amounting  to      14,4'.):$  ) 
l>.  '  Additional  claims  for  insurances  on  freiylits,  ■     7'J,  (il*:! 

(  amonntinj;  to      ()">,  200  *) 

i  Additional  claims  for  car;;oes,  amountiiif;  to    'J.i(5,  478  ) 
f.  ^  Additional  claims  for  insurances  on  cargoes,  >  3:?t'),  (i'.t'.t 

(  amountiiifj;  to     ll(»,2"il  ) 

(I.    Additional  claims  for  daniajjes,  amonntiiif?  to y'J,0(li) 

I.     Aihlitioiial  claims  for  personal  etlects,  amountiiif^  to :U,  li)l 

()4-^,  2:i:> 


As  ro^ar<ls  item  {a,)  for  I'vssels  and  iiisurnnees  on  vcsdels,  it  consist^. 
with  the  e\cei)tioii  of  $21,800,  of  Farther  Claims  for  vessels  already 
cUiimed  for  iii  the  "  Former  Statement,"  and  may  be  almost  entirely 
traced  to  owners  advancing  chiims  simultaneously  with  insurance  com 
panics.  An  aderjuate  allowance  for  the  value  of  these  vessels  has,  in 
our  opinion,  been  made  in  our  First  lieport,  and  we  therefore  cannot  pro- 
pose any  further  allowance  in  respect  of  the  additional  claim,  ($72,G.jL'.) 
except  as  regards  the  sum  of  $21,800  just  referred  to,  which  represents 
a  claim  for  the  Robert  GilflUan,  of  240  tons,  (p.  221,)  a  vessel  not  coin- 
prised  in  the  "  Former  Statement;"  estimating  Iter  value  at  our  rate  ot 
$40  per  ton,  we  allow  for  her,  $<.),G00. 

It  follows,  therefore,  that  for  the  claim  [a)  of  $172,052  for  tli£  vesseh 
we  propose  an  allowance  of  $9,000. 

As  regards  item  (6,)  for  freights  and  insurances  on  freights,  it  consists, 
with  the  exception  of  an  amount  of  $01,500,  entirely  of  Further  Claims 
for  freights  already  claimed  for  in  the  "  Former  Statement,"  and  itnuist. 


ANNKX    C. UKPOUT    OF    TIIK    HOARD    OF    TRADK. 


327 


lor  tint  sanio  reiison  for  wliitjli  we  liiivc  Just  disiillowi'd  .siiniliir  cliilms  in 
ros|H'<'t  of  tlio  vessels,  be  rejected. 

Ah  to  tlui  iuiiomii  «»f  )§((>I,r)U(),  tlie  residue  of  this  itejii,  it  is  (claimed 
by  tlii^  Atlantic  insuraiiee  Company  in  resiieiitof  the  ('oldest,  (pa<jfe  .'50.) 
It  is  to  be  (deserved  that  in  the  Uevised  Statement  the  shipowners  repeat 
tlic  adnussion  made  in  the  "  Former  Statement,"  that  they  have  received 
$;;s,."((M)  for  insnraniu'sonship  and  caryo,  and  for  this  anionnt  the  insur- 
ance company  nuj^ht  be  exp«!cted  to  claim;  but  in  a(hlit ion,  they,  foi' 
tlie  lirst  time,  advance  a  (daim  in  the  "Uevised  Statement"  for  $(il,ii()0 
111  respect  ot'/irii/ht  by  claimiii};  for  insiimnrf  on  ship,  cnr<io,  awl  freiyht  in 
the  lump,  ii  n)un(l  sum  of  )j!l()0,<)(M>.  The  ship  was  boiunl  on  a  voyajjc 
t'lom  .lapan  to  New  York,  and  was  1,109  tons  rej^ister,  so  that  theclaim 
[\)i  freight  is  at  the  rate  of  $"»<>  per  ton  ;  Imt  itnuist  be  rejected,  because 
it  is  an  unjustitiable  claim  for  {jross  frei<iht ;  .and  according  to  the  i)rin- 
ciples  fully  stated  in  our  First  Keport,we  substitute,  in  proportion  to  the 
toiiiia^fe  of  the  vessel,  an  allowance  wln(!h  we  have  estimated  at  $4,000. 

It  follows,  therefore,  that  for  the  claim  (/;)  of  $79,0!KJ  for  freiijlit,  we 
propose  an  allowance  of  $  t,(>00. 

We  now  i>ass  to  item  (c*,)  for  earf/oes  and  insiimnn-  onvargot's  ;  but  be- 
fore analy/iny  this  large  additional  claim,  it  api)ears  to  us  important  to 
preiiMse  the  following  general  observations. 

As  r«  ;;ards  the  form  in  which  these  additional  claims  are  ju'esonted. 
there  are  two  facts  disclosed  in  the  list  of  documents  appended  to  the 
statements  of  the  claims  which  distinguish,  in  a  very  notable  manner, 
these  flf/f/tf/owff/claimsfrom  thosecomprised  in  the  "Former  Statement." 
The  one  is,  that  the  majority  of  the  new  chiims  are  presented,  not  by 
the  claimants  themselves,  but  by  one  or  two  firms  who  seem  to  have 
made  it  their  business  to  collect  claims.  The  other  is,  that  in  a  very 
jrreat  number,  and,  we  believe,  in  the  majority  of  cases,  there  are  no 
bills  of  lading  tiled  at  Washington  which  would  evidence  the  shipment 
of  the  g  ')ds  or  the  property  in  them. 

Fr(,''ii  tlie  volume  already  referred  to  in  this  Jieport,  containing  "The 
correspoi'dence  relating  to  claims  against  (Ireat  Britain,*'  it  appears  that 
;i  list  of  claims  was  prepared  as  early  as  the  year  1800,  and  that  in  180t> 
therit  was  i)resented  to  the  Congress  of  the  United  States  a  new  list, 
\vhi<;li,  according  to  the  statement  of  yiv.  Hamilton  Fish,  (to  be  found 
at  i)iige  414  of  the  same  volume,)  the  (jovernment  of  the  United  States 
'•used  every  effort  to  make  as  complete  as  jmssible."  Under  these  cir- 
cumstances, and  also  when  we  tind  again  a  third  list  of  claims  i»resented 
to  t  lie  Tribunal  at  (leneva,  it  seems  scarcely  credible  that  persons  having 
sustained  hona  fide  losses,  unless  they  ha<l  already  received  compensa- 
tion, would  have  omitted  to  present  them  in  any  of  the  three  lists,  and 
would  have  deferred  doing  so  until  the  l."»th  of  April  last.  We  there- 
fore expect  that,  if  ever  these  additional  claims  come  to  be  separately 
investigated  and  proj)erly  sifted,  it  will  be  found  that  niany  of  them  are 
fictitious  ;  that  in  numerous  cases,  and  especially  in  those  of  goods  con- 
!?igned  to  or  from  British  ports,  the  owners  were  insured  in  England, 
and  have  received  compensation  from  British  untlerwriters;  and  that  in 
other  ^ases,  particularly  in  those  where  no  bills  of  lading  have  been 
tiled,  consignors  are  now  claiming  for  goods,  the  juojM'rty  in  which  has 
]»assed  to  consignees,  who  either  are  claiming  at  tlie  same  time,  or  have 
been  paid  by  l^^nglish  underwriters. 

We  have  not,  however,  felt  ourselves  Justitied  in  acting  upon  this  ex 
pectation,  but  have,  with  the  exception  of  a  few  cases  which  we  shall 
particularly  notice,  adopted  the  course  pointed  out  on  page  7  of  our  First 
Keport.    We  accordingly  propose  to  deduct,  as  before,  12  per  cent,  from 


««■* 


.M,tt 


I 


I. 


m 


328 


BRITISH   ARGUMENT. 


ih 


">.| 


the  gross  aniouut  of  the  additional  claims  lor  ^^oods,  ])rofits,  cominj.s. 
sions,  and  insurances,  and  to  regard,  for  the  purpose  of  the  ])roseiit 
estimate,  the  bahince  as  representing  the  value  of  the  goodS;  free  on 
board,  together  with  ordinary  interest  from  the  time  of  shipment  until 
capture.  This  deduction  of  12  per  cent,  is  jnstitied  by  the  reasons  fully 
stated  in  the  introductory  part  of  our  FirstKei)ort,  especially  as  the  ad- 
ditioiud  claims  for  cargo  here  also  include  sometimes  claims  for  piotits 
at  the  rate  of  50  and  even  100  per  cent.,  as  well  as  claims  for  coniniis- 
sions,  and  lamages  for  non-arrival  of  goods,  and  moreover  a]>pe;n'  to 
involve  "double  claims  for  single  losses"  to  a  considerable  amount. 

Having  made  these  i)reliniinary  observations  we  proceed  to  consider 
this  item  (c)  of  8'>3G,G09,  whiclj  comprises  claims  for  caryix's^  profits, 
ivmmissiom,  and  infturances  thereon  ;  and  we  will  begin  by  specifying 
those  particular  claims  whi(;h  we  think  ought  to  be  rejected. 

1.  W.  McGHvcrji,  j)age  210. — This  is  a  vessel  not  claimed  for  in  the 
"Former  titatement,"'  aud  for  her  cargo  a  claim  is  made  of  !? 4,752 ;  Imt  as 
the  Jetf  Davis  is  not  one  of  the  cruisers  mentioned  in  the  United  Stabs 
Case,  this  claim  must,  for  the  r-  asons  stated  at  page  2  of  the  JJritish 
Counter  Case,  in  referfuce  to  the  Jloston  and  the  iSallie,  be  certaiiily 
rejected. 

2.  Anna  F.  ^Schmidt,  iiage  1(5. — Baker  and  Hamilton,  of  Sacrauu-nto, 
California,  claime<l  in  the  "Former  Statement"'  •'r'O,!?!  partly  directly, 
and  partly  through  insurance  companies.  In  ihe  "lleviscd  Statement" 
they  advance  a  claim  of  813,078,  which  is  all  but  double  the  forinor 
amount.  We  consider  this  to  constitute  in  all  probability  a  double  claim 
i\ir  a  single  loss,  and  propose  theretbre  to  reject  this  additional  claim  ol 
*0,G04. 

3.  Sen  Larl;  pages  78-S2. — Here  Osgood  and  Stetson  admit  haviii;; 
received  from  the  Menhants'  .Mutual  .Marine  Insurance  Company  81.00(1, 
but  do  not  give  credit  for  this  sum,  all:in)ugh  it  is  also  at  the  sanu?  time 
<-laimed  by  the  insurance  company.  This  therefore  constitutes  a  (loithh' 
daimfor  a  single  loss,  and  gives  ^ise  to  tiie  deduction  of  8l,(K)0. 

4.  >Sm  JadL] — F.  :M.  and  .Mary  IxoD'-s  claim  810,000,  but  admit  haviiii; 
received  from  insurance  comi)anies  81,505  in  gold,  Avhich,  according  t«i 
the  rate  of  exchange  inferred  from  the  case  of  the  ^lorning  Star,  as 
.stated  lu  page  ."JlOof  this  jfeport, would  an)onntto82,150('»;;T»(;i/-  Tliere 
must  therefore  be  a  «ledncti<m  of  82,150, 

5.  T.  B.  ^Vah■s,  page  *M\. — There  are  hem  two  additional  claims,  viz. 
a  claim  hy  Young  and  Fiiiniotis  of  8->,588  for  loss  on  cargo  bore  iit.siir- 
anve,  and  a  claim  by  Samnel  Stevens  of  8'>,500  i"or  /*».s,s'  on  cargo  (in>( 
jtrofits  above  insiiranrc.  On  comparing  the  claims  inade  by  these  pcrsiuis 
ami  by  the  comifanies  witii  whom  they  liad  etlected  insurances  in  tlif 
"Revised  Statement*'  and  in  the  "Former  Statement,"  we  have  scarcely 
any  tloubt  tiiat  these  claims  liave  been  already  discharged  by  tiie  insui- 
ance  companies  who  are  claiming  at  the  same  time,  and  we  therclun.' 
reject  these  two  claims,  which  together  amount  to  87,088. 

(».  (iood  Hope.  pageL'bS. —  Here  the  ]C(|uitabl«  Nilety  Insurance  (dm- 
pany  have  ad\an<'e(l  two  additional  claims,  one  of  810,<*('0  as  insvri'r^ 
on  cargo,  and  another  of  81<*.(>"0  as  insurers  on  mip  for  lasigi,  Gudilard 
ct  Co.  On  iomjiaring  tin'  claims  ma<l<',  by  this  firm,  and  by  compaiiicN 
as  insurers  ibr  them  in  the  "Original  last"  of  I8()(»,  wilh  those  in  tlie 
"  Li.st  i>resented  to  Congress  in  1800,"  as  well  as  with  those  in  tln- 
"  Former"  and  in  tlie  '^IJevised  Statements,"'  we  think  it  can  be  prevcil. 
jdmost  beyontl  a  «loul»t,  that  the  additional  claim  by  the  insurance  cuin- 
pany  of  81('.('(>0  in  respect  of  the  cargo  must  be  re.je<'ted  as  a  double  ehmn 
for  a  single  Inss. 


^mm 


ANNEX  C. RfirORT  OF  THE  BOARD  OF  TRADE. 


329 


connnis- 
'.  present 
',;  free  on 
eiit  until 
jons  fnlly 
IS  tlie  ;i(l- 
"or  pvotits 
'  coniinis- 
i]ipear  to 
sunt. 
»  consitler 
.v,  profits, 
;peeityinj;' 

For  in  the 
52;  l»utus 
ted  States 
lie  IJritish 
e  certainly 

icrauiento, 
y  «lirei'tly, 
itatenient" 
the  former 
(nihJc  rl^iin 
il  cliiini  oi 

in  it  havin- 
any  ii-l. '»(»». 

same  lime 
es  a  ilouhk 
00. 
niitliavius 

eorflin.u'  to 
\\\i,  Siar,  as 
nvii.   'fi'<'i't' 

•lainis.  viz. 

More  insur- 

i-nf(j<>  <('<" 

}so  pers»ni> 

lices  in  tlif 

jv«'  searcely 

*iie  iiisin- 

■  there  I  OIL' 

Ivauce  Com- 
as inmirif-^ 
I'l.  /;«(/'/(Nvi 

couipauifs 
liose  in  tbo 
lose  in  tln- 
|l»e  pnivt'il. 

ranee  eoiu- 


7.  Crown  Point. — It  appear.^  froiii  the  "Original  Ijist"  tliat  ^l.  lleller 
&  Urother,  of  San  Francisco,  and  J.  Heller  «S:  Brother,  of  Xew  York,  are 
the  same  firm  ;  and  from  this  fact  it  can  bo  inferred,  with  scarcely  any 
doubt,  from  the  claims  which  ]M.  Heller  and  J.  Heller  advance  for  loss 
(111  cargo,  (at  pp.  125, 120  of  the  forruer,  and  pp.  ir)2-ir»4  of  the  Itevised 
Statement.)  that  they  are  making  dovhlc  claims  for  .single  h  ..iCft,  at  least 
to  the  extent  of  $9,044 ;  we  say  at  least,  becanso  we  cannot  heli>  viewing 
with  consUlerrble  suspicion  a  claim  made  at  the  same  time  by  a  lirm  of 
William  Heller  «!v:  Co.,  of  Xew  York  and  San  Francisco,  ([»age  12.")  of  the 
•  Former,"  and  page  151  of  the  "  Ikcvised  Statement,'")  for  very  nearly  the 
>aine  amount  as  that  claimed  by  John  Ifeller.  We  therefore  deduct  the 
<m\  of  89,044. 

Adding  then  together  the  seven  amounts  of  *4,752,  $G,«»04,  .'«!l,0(lO, 
^2.150,  $7,088,  810,000,  and  89,044,  which  we  reject  for  the  reasons  Just 
>tated,  and  subtracting  their  total  amount  of  840,0 -S  from  the  amount 
ilairaed  for  cargoes,  )iamely,  8''>30,090,  we  obtain  a  balance  of  8-90,001. 
For  reasons  already  stated,  we  deduct  from  this  Oahmce  12  per  cent., 
ami  thus  obtain  tlie  sum  of  8200,534,  which,  for  the  purpose  of  the 
present  estinmte,  we  propose  to  allow,  instead  of  the  claim  of  833(i,09t>. 

As  regards  item  (</,)  of  8-2,000  for  (lamaf/es,  there  aio  two  claims,  each 
(It  810,000 — one  by  the  widow  of  tho  First  mate,  and  the  other  by  the 
Second  mate  of  the  Crown  Point — for  damages,  loss  of  vafjcs.,  and  personal 
ifccts.  We  have  assumed  that  of  this  sum  ^]  ,000  is  claimed  for  personal 
'fects,  and  have  therefore  excluded  it  trom  this  item ;  and  the  remaining 
"ilOjOOO  we  i)ut  down  as  a  claim  for  damages  and  loxs  oj  irages,  time,  ilv., 
whi':h,  forreasons  fully  stated  in  our  First  l{ej)ort,  must  be  rejected.  The 
ii-sidue  of  this  item,  viz,  8-'>,000,  represents  a  claim  for  damages  occa- 
sioned by  the  detf  Davis,  (see  page  219,)  with  which,  for  the  reason 
already  stated,  we  have  nothing  to  do.  It  follows,  therefore,  that  we 
[•ropose  to  reject  entiiely  the  claim  {d)  of  822,000  for  damages. 

As  regards  item  {e.)  of  8')l/it>l  i'ov  personal  effects,  it  will  be  found,  on 
'cferring  to  our  former  Ile})ort  on  Class  C,  (page  20,)  that  the  claims  for 
■im  of  ]>erso7ial  e^p'ects  on  board  the  vessels  compris(Ml  in  that  class  are. 
(.specially  extravagant,  and  that  we  consequently  made  a  geiu'ral  allow- 
ance for  these  ilaims,  at  the  rate  of  83  i)er  ton.  This  allo«vance  appeared 
iiul  still  appears  to  us  to  bo,  on  the  whole,  sullicient  to  cover  any  loss 
inobably  sustained  in  ivsiK'vt  o(  jters<fnal  effects  ;  and  as  the  "IJevised 
!?tatement"  does  not  comprise  any  new  vessels  belonging  to  this  t'l;'.ss 
fxoept  the  liobert  (lillillan,  (which,  as  already  stateil,  we  put  or.  one 
Mile.)  we  do  not  think  that  the  adtlitioual  claim  {<■)  for  personal  ('If'ects 
(((//.v  for  any  additional  allowance. 

The  residt,  therefore,  at  which  we  have  airixed  as  to  the  ailditional 
tlainis  under  Class  C  may  be  exhibited  in  the  following  lorm  : 


Cliiiiu. 


'.  Vessels ¥l"2,  d.")!? 

■•  K(vij,^its 7!t,  t;iH{ 

•  I  artrofs > '.VM'i,  (i'.t'.l 

'.  PaiiiMjics V>-J,0O(> 

'•  IVisoiial  ('llwtH 'M,  I'M 


DiHiillowcd.      AUowtil. 


*i(;:t,OiVi 

*i>.  000 

7.'.,  IM\ 

l.tiltO 

Tc,  k;:. 

'.'(;(»,  .'.:!4 

'J'i,  00(1     .. 

;{|,i'.ti   

ctv',  •:>:tr) 


UilH,  101 


^r:\,r.\\ 


'?• '  ^ 


li  1 


m 


3;)0  MRITlSIl    AROrMKNT. 

Class  J). 

In  till'  ••  I'oriiitM'  Stali'iiu'iit"  (ho  claiiiiK  coniinistMl  in  tlii.s  ulasis  aiiioiiiit  t<>  ...     Jii7;!i),  'x,.i 
l$nt  ol"  tliis  aniDiint  tlicic  lias  hccn  withdrawn,  in  th(!  case  of  tiio  lOninui  .lane. 
( |ia;?<j  :{7,)  Ihi'  sum  of ',).  Oihi 

Lraviiifia  sum  of T'v!l,'j,v,i 

To  I'f  ronipai'i-d  with  th»'  sum  claimed  in  t\u'  "  Ifevisi'd  Stattinont  " .'-!.-<T,  s;ii 

So  that  the  total  amount  of  the  additional  claims  in  the  "  Kcvisfd  Statement"  is    Itlfi,  ^7C 

And  it  consists  of  claims  for — 

{a.)  For  vessels slll/.U)  U, ,  .  , , 

For  insn ranees  on  ditto o,  0(J0  ^•^^"'••'•'' 

(b.)   For  freijihts 

For  insurances  on  ditto 

{(-.<   For  car<;o»'s o.OdO^     -ii'  r- 

I'or  insurances  on  ditto '21.  11")  S     '  '' 

(d.)  For  daniaf^es ll!.  "iiih 

(«'.  ■    For  personal  ell'ccts It, -i.V 

16r»,sT'j 

As  n'jranls  itciu  (a)  for  rcsHelsand  insurancen,  it  consists  ol" — 

Xew  Clahnii,  (i.  e.,  claims  tor  vesselH  not  comprised  in  "Former  Stiitc 
ment,'')  i=«](>2,io!>. 

Further  Chums,  (i.  e.,  fresh  claims  i'or  vessels  comprised  in  "  Foniici 
Statement,-')  814,500. 

The  Seir  Chdms,  amonntinjr  to  )5!  102,450,  are — for  the  Tacony,  205  tons, 
(l)age  206  ;)  the  (lolden  liockel,  010  tons,  (paye  200;)  and  the  Vigilant, 
050  tons,  (pajj;e  271.) 

In  the  absence  of  all  information  as  to  the  class  or  condition  of  tliosc 
vessels,  we  vidne  them  at  our  average  rate  of  *40  per  ton,  whicli  givtv^ 
ai'  allowance  of  $02,200. 

Tiie  Furtlicr  CItiinis,  amounting-  to  $14,500,  consist  of  a  claim  of  «."»(lii 
for  the  Josiah  Achom,  and  $14,000  for  the  Estelle. 

As  to  the  Josiah  Achom  it  will  be  found  that  at  l)age  28  «»f  our  First 
JJt'port  there  was  a  claim  of  $7,500  for  the  rcssd  a)td  her  oiitfifj  which  we 
felt  ourselves  compelled  to  allow,  because  there  was  no  iiiforination 
g:iven  as  to  her  tonnage,  destination,  or  employment.  The  "  Iteviscd 
(Statement"  snpjiljes  the  rc(iuired  information,  and  as  our  valuation  of 
this  vessel  of  125  tons  woidd  be  cons!d?!';ibly  less  than  the  amoii?it  nt 
$7,500  already  allowed,  we  think  the  additional  claim  must  certainly  he 
rejected. 

As  to  the  ICstelle,  on  referring'  to  page  2(5  of  our  First  Keport  it  will  1m 
seen  that  we  there  rejectetl  tlu'  claim  of  $1,000  which  was  made  by  an 
insurance  <'omi>any ,  because  it  did  not  seem  in  any  way  to  re|)resent  the 
valiu;  of  the  vess«'!,  lor  which  no  claim  was  advanced  in  the  "  l-'oriiio! 
Statement."  In  the  "IJevised  Statement  "a  claim  is  madeof  $14,OI)<Moi 
the  ralKt'i)/  this  ressel,  i'MH)  tons.)  ami  sdthough  it  is  somewhat  in  excess 
of  our  average  valuation,  still,  judging  from  the  trade  in  which  she  was 
en^jaged,  we  assume  that  siie  nuist  have  been  a  vessel  of  a  {food  class, 
arul  we  propose,  therefore,  that  the  claim  of  $14,0(K>  should  be  allowed, 

\Ve  have  thus  estimated  the  Neic  claims  at  $({2,200,  and  the  Fiirthr 
claims  at  $14,000,  and  therefore  propose  an  allowance  of  $70,2(10  for 
the  claim  (o)  of  $110,050  in  resjjcct  of  the  vessels. 

As  reg'ards  item  (c,)  for  vnrgoes  and  insurances  theretui,  it  consist.-^ot'a 
claim  of  $21,155  by  the  Atlantic  iMutual  Insurance  ('omi)any,  for  in 


ANNKX    (" 


-WKPORT    (W    THE    BOARD    OF    TK'ADi:. 


331 


liin  of  ><"t<iti 


.-.uraiicc  oil  carjio  por  the  Umpire,  and  a  claim  of  *r),00(>  by  Messrs, 
Lawson  and  Walker  oii  aecoimt  of  Collins  for  cargo  ])er  the  IMondamin. 

As  to  (lie  claim  by  tlu'  Atlantic/Mutual  Insnrance  (Company,  although 
It  seems  almost  inexplicable  that  it  shonhl  have  been  presented  only  at 
the  last  moment,  we  i)ropose  to  allow  it,  subject,  ho\vev<'r,  to  those  re- 
marks which  we  made  at  ]>age  14  of  this  J{ei)ort  as  to  all  the  aihiiiioiwl 
,  hiinis  for  cargoes.  As  to  the  claim  for  goods  per  the  Moudamin,  it  is 
tor  mr<io  on  board  a  Aessel,  described  at  page  \~^^  of  the  "  Jtevised  State- 
ment" as  being  in  ballast,  and  Ibr  this  reason  cannot  be  regarded  with- 
riit  suspicion  ;  moreover,  it  is  i)ut  forwanl  at  the  last  moment  without 
iiiiy  particulars  or  infornuition  to  support  it,  and  is  merely  ])resented  in 
;i  letter  from  ^Fessrs.  Lawson  ami  Walker,  one  of  the  two  or  three  tirnis 
wlio  seem  to  have  made  it  their  business  to  collect  ad<litioiml  claims. 
For  all  these  reasons  the  claim  is  one  which  in  oui-  ojunioii  should  be 
ivjeeted. 

Deducting,  then,  VI  per  cent,  from  the  claim  by  the  Atlantic  Mutual 
hisurance  Company  of  *L'l,l."»r»,  we  obtaiii  the  sum  of  $18,GL*.'>,  which, 
tor  reasons  stated  in  our  First  Report,  we  assume  to  represent  the  value 
i)t  the  cargo  free  on  board,  and  we  therefore  i>ropose  that  this  sum  of 
siS,Gl'.'>  be  allov.ed  for  the  claim  {<•)  of  $2(),155  in  respect  of  the  cargoes. 

As  regards  the  item  (</)  for  damaf/cs,  it  consists  of  oidy  one  claim  of 
*l.i,r)0()  by  the  owners  of  the  Tacony  for  "  loss  by  interrui)tion  of  busi 
iiess,''  a  claim  which  must  be  rejected  for  reasons  so  often  stated  in  our 
First  licport. 

As  regards  the  item  (c,)  for  personal  ejfh'ts,  the  claims  are  as  follows: 

The  Sonora,  j>.  1)0. — llen^  are  claims  amounting  to  $•">,  171  by  the  Master 
1111(1  Mate  for  /o.s',s'  of  effeeta.,  time,  passaffe,  and  t'.vpen.se.s,  no  such  claim  bav- 
in}' been  made  in  the  "  Former  StatenuMit."  i'\)r  reasons  stated  in  our 
First  lieport  the  oidy  claim  which  can  be  taken  into  account  is  that  for 
loss  oj' inrxonal  eff'eet.s\  and  we  consider  that  for  this  loss  a  sum  of  !ifl,0(M>, 
vi/,  s7(Kl  for  the  Master  and  *.'}()(>  f(U'  the  ."Mate,  will  give  adequate  com- 
iifiisation. 

The  Monilamhi,  p.  1S,9. — Heic  a  new  claim  is  advanced  by  Dillingham 
iiirAl,!!.!  for  loss  of  personal  e()'erfs,  Ov:c.,  but  as  the  vessel  was  in  ballast, 
111(1  the  Master  ami  Mate  imike  no  claim  \\n- personfd  f//t'c^s,  and  there  is 
110  description  given  of  th«^  claimant,  and  no  intbrmation  as  to  whether 
lie  was  a  passenger  or  a  seaman,  we  think  this  claim  ought  not  to  be 
allowed. 

Tin   J[arrei/  lUrrh,  p.  -L*(). — Here  there  is  an  additional  claim  by  the 

•  aptain  of  )iil,(»47.     In  our  l-'irst   Report  (p.  L'S)  we  allowed  the  sum  oi" 
*:>..VHMbr  loss  of  personal  ejf'eets  on   board  this  vessel,  and  as  we  con 
M'ler  this  allowance  ami)ly  sutlicient  to  covi'r  all  su(;h  losses,  we  think 
'Ills  eiiiiiii  should  be  rejected. 

The  Jh'Iphlne,  )>.  L'.'M. — Mere  the  ^NFate  claims  f^H'J't.  but  as  in  <Mir  I''irst 
kcport  (p.  2S)  we  allowed  the  liberal  sum  of  .*;),(>!>0  for  loss  of  persinml 
if(T(.s  in  respect  of  this  vessel  of  7(l."»  tons,  we  tliink  this  fuitlu'r  claim 
should  be  disallowed. 

The  Taeonif,  ]).  LMKI. — Here  Doherty  at  the  last  UKunent  nnikes  a  new 

•  laiin  of  •"i<772  tor  loss  of  personal  tji'erls.     Here  again,  as  no  description 
i>iKiven  of  the  claimant,  an«l  as  it  is  not   known  whether  he  was  a  pas 
Milder,  eonunon  seanmn,  or  oflUu'r,  Ave  think  that  a  claim  of  this  vagiu' 
'iiiid,  presented  (udy  at  the  last  nu)ment,  ought  not  to  be  assume<l  to 
'«'  a  elaiin  other  than  by  a  seami'.n,  and  we  allow  ASIK 

We  therefore  propos»'  that  for  the  cl.iim  (r)  of  $0,2."»H  for  ftersonni 
'fects  there  should  l>e  allowed  -ISl.OSO. 


M..| 


!*!♦ 


I-^'^ 


iff! 


^i"i^«7^   ^^ 


332 


BRITISH    AKGUMENT. 


The  result  at  which  we  have  arrived  with  reference  to  the  claims  In 
Class  D  may  be  exhibited  in  the  following  form : 


Anionnt 
claimed. 


Disallowed.      Allowcil. 


((t.)  Vosscls 

(/;.)  CiirKoes 

(c.)  Dainiij^cs 

((/.)  IVrsoiial  flVccts... 


.tiiifi.ono 
•>(•),  If)') 
1:5.  r,w 


140, 75(t 

7,r.:J2 

13,  500 

8,178 


176, 20(1 
is,w;i 


1,0-0 


IC).-) 


(■)!>,  ItOlt 


It"),  W.', 


Class  E,  F. 

In  the  ••  ronin'i'  Statoiiiciit  "  tlio  claiiris  comprised  in  this  class  are S"-2'.'tl -ll.' 

In  the  "Revised  Statement"  the  claims  in  this  class  amonnt  to sloOl.tlf)! 

IJiit  on  acconnt  of  the  enors  of  .S-,i:Hl  and  of  ^lOlt,  )»ointed  out  at 
l)a<;o  4  of  this  Report,  in  reference  to  the  Corriss  Ann  and  Mornin^f 
Star,  (two  vessels  l)clonj;in^  to  this  class,)  there  nnist  he  addi.-d 
the  sum  of \>,:>M\ 

r.oi.M 

So  that  the  total  amount  of  the  additioiinl  claims  in  the  "  Rm'ised  Statement "' 

is 2()l.i\\>, 

This  consists  of  claims — 

(<i.)  For  vessels 8l"iO,  ]r^[)  ?^.i-,,  ,.. 

For  insurances  on  vessels H, 'WH  y-  ''"  " 

(/>.)  For  freights 'il.ir.ti^     .,,  , 

Forinsnranc(>S(Ui  Ireij^hts S     '  '  '  ' 

{('.)  For  carj^oes r.,  000  {     .,.,  .,.^, 

For  insurances  on  carj^oes Ir*,  r>70  ^     "  "' 

(<1.)  Fordanm<i;<'^ 

(c.)  For  i»ersonal  elVects 4,(14:5  4.ti4 

:20T,(14i: 

As  reiiurds  item  («.)  for  vessels  and  insurances,  ir  consists  (d" : 

Xtiv  Claimx,  i.  c,  chiims  for  vessels  not  comprised  in  "  Former  Statement  " fOl.ii"" 

l-'itrthir  Claiiiis,  /.  c,  fresh  claims  for  vessels  comprised  in  '•Former  Statement"'  .    i:i-,  •'■'.' 

Tilt'  Nar  CIdims  for  vessels  are  as  follows  : 

1.  The  M.  Y.  Ihiris,  p.  185.— The  claim  for  vessel  is  ^K^OO.  IIw 
tonnaj;e  and  class  are  not  ;;iven,  nor  is  it  stated  where  or  when  shcAvus 
captured,  or  on  what  voyaj,'e  she  was  bound,  and  as  this  claim  v.ms  not 
presented  until  the  l."ith  ^March  last,  and  was  then  [iresented  by  3Ies.'<is. 
Lawson  «S:  Walker,  (the  firm  already  refei'red  to,)  without  any  matorial 
information  or  particulars  bein;::  given,  and  apparently  without  Iumh: 
supported  by  any  adidavit  of  tlie  owner,  or  other  proper  cvidt.'iitiar.v 
document,  we  think  it  should  be  rejected. 

li.  The  Joseph  MaxiccU,  ]>.  L'Gt). — This  .ship,  the  tonnage  of  whicli  is  nor 
given,  is  repres»nted  to  have  been  captured  by  the  Sumter  and  run 
ashore,  to  have  been  afterwards  got  off  a'ld  taken  into  the  port  ot  ("icii- 
fuegos,  and  to  have  been  there  sold  w  ith  her  cargo  by  order  of  the 
Court  of  Admiralty.  The  claim  for  the  vessel  is  !!<f,!)88,  advanced  by  an 
insurance  company,  for  insurances  on  her.  It  nniy  well  be  tliat  the 
events  above  de.scril)e«l  constituted  a  constructive  totalloss,  ami  oblipil 
the  insurance  company  to  ])ay  the  anmunt  insured,  but  in  such  case  the 


ANNEX  C. REPORT  OF  THE  BOARD  OF  TRADE. 


OOO 


property  would,  by  abiindomnent,  pass  to  them,  and  as  they  have  not 
jjiveii  eredit  tor  its  i>roceeds,  nor  supplied  any  particulars  to  show  that 
U  was  sul)staiitially  depreciated  by  any  injury  directly  sustained  by 
reason  of  the  capture,  we  are  of  opinion  that  this  claim  ought  not  to  be 
allowed. 

The  Further  Chtima  for  v«'ssels  are  as  follows: 

I.  The  Corriss  Attn,  (i>.  147,jrt/".")()8  tons. — On  referring-  to  our  First  lie- 
jtoit  (p- i>0)  it  will  be  found  tliat  there  was  only  a  claim  of  «1,(HK)  for 
jh'iglit  and  no  claim  for  the  vessel.  In  the  "Ivcvised  Statement"  there 
is  a  cliiiin  of  $1*0,000  for  the  vessel,  and  as  we  do  not  consider  it  excess- 
ive, considering  her  tonnage,  we  projwse  to  allow  it. 

The  General  Berry,  p.  171*. — This  vessel,  the  tonnage  of  which  is  not 
^ivcn,  is  described  as  having  been  in  the  United  States  Service  when 
(kstroyed.  It  appears  from  the  synopsis  of  the  list  of  papers  ai)pended 
to  the  Statement  that  a  claim  of  $1(J,000  was  presente«l  to  the  L'nited 
States  Senate  for  the  loss  of  this  vessel.  Jf  this  amount  liad  been  paid, 
the  present  claim  is,  in  fact,  one  presented  on  behalf  of  the  l'nited 
States  Government  in  respect  of  a  vessel  in  its  s«uvice;  but,  whether 
this  be  or  be  not  so,  it  seems  to  us  at  any  rate  certain  that  under  the 
circumstances  nunc  tiian  $10,000  cannot  be  fairly  demanded,  and  we, 
tiiiiefore,  i)ropose  only  to  allow  that  sum. 

.1.  The  Oeorge  Latimer,  (p.  17.'$,)  of  L'OO  tons. — Ifere  there  is  a  claim 
,)t  >ilO,  134.  In  the  "  Former  Statement''  there  was  a  claim  only  of  $1,000 
tui  the  vessel,  which  we  allowed,  as  hc-r  tonnage  was  not  given.  (See 
paye  .'50  of  First  Ilei)ort.)  Ileing  now  informed  of  her  tonnage,  and  valu- 
iii;;'  her  at  our  average  rate,  we  think  there  should  be  an  aihiifional 
iiliowance  of  $7,(K»0. 

I.  The  Jiyzantinm,  (p.  1*08,)^}/'  I,0."iO  tons.— It  will  l)e  found  at  page .^0 of 
our  First  Iteport,that,  as  no  claim  was  made  for  the  value  of  the  ship  in 
tile  "Former  Statement,"  we  inferred  that  she  had  been  probal>Iy  insured 
and  paid  for  by  English  undtu'writers,  but  as  a  claim  is  m)w  advanced 
tor  ship  and  freight  of  $50,787,  of  which  weasci'ibe  $t."),000  to  ship  and 
H7S7  to  freight,  we  propose  to  allow  for  the  vessel,  at  the  rate  of  $10 
jier  ton,  (though  with  very  considerable  doubt,)  the  sum  of  $12,000. 

.1.  The  Daniel  Trowbridye,  (p.  'JG7,)  of  IS.")  tons. — In  the  "  Former  State- 
iiiciit"'  there  was  no  account  given  of  her  tonnage,  nor  of  what  had  been 
(lone  with  her.  In  the  "  ltevise<l  Statement '"  she  is  said  to  have  been  de- 
stroyed on  the  22d  October,  1801,  and  there  is  a  claim  of  $8,500  for  res- 
m7,  and  of  $7,304  for  varyo  and  outfit,  of  which  latter  sum  we  juit  $5,000 
down  to  earyo,  ami  $1',.'}1)4  to  outfit.  As  it  seems  almost  inexplicable  that 
a  loss  which  occurred  at  so  early  a  period  shocdd  m)t  have  been  claimed 
tor  until  the  15th  March  last,  unless  the  owners  had  receive*!  compensa- 
tion, and  as  there  is  lu)  claim  by  American  insurance  comi)anies,  it  is 
only  with  very  considerable  hesitation  that  we  proixtse  to  allow  \\n'  the 
value  of  ship  and  outfit,  in  ]»roportion  to  her  tonnage,  the  sum  of  $7,500. 

ti.  The  J'JIjcn  Dodye,  p.  li(J8. —  In  our  First  Keport  (p.  30)  we  allowed  the 
only  claim  cnntaiiRHl  in  the  '•  Former  Statement,"  vi/,  the  sum  of  $L',L*50, 
which  was  claimed  by  an  insuraiu'c  company.  In  the"  Revised  Statement" 
there  is  now  a  very  heavy  claim  for  ressel,  outjif,  and  yeneral  earninys, 
showing  her  to  have  been  a  whaler.  It  appears,  from  the  account  given 
of  her  by  Captain  Senimes,  that  she  was  probably  a.  vessel  of  about  2,")(> 
tons,  and  that,  whe:;  she  was  caj)tured,  she  was  leaking  badly,  and  had 
no  cargo  on  boa'.d.  as  we  have  already  allowed  $2,500,  we  have  no 
iloubt  that  we  shall  be  giving  ample  com[»ensatiou  by  making  an  addi- 
tioiiiil  allowance  of  $20,000. 

The  result  (>i  this  analysis  is,  that  for  the  additional  claim  («)  of 


^ 


i   ■  "f 


;f 


fe, 


:jn4 


BRITISH    ARGUMKNT. 


u*- 


.tISOjIT?  for  irssds  and  htmiuinces  flureon,  we  jnopose  that  there  slionld 
be  made  an  allowauee  of  $112,.j0(>. 
As  regards  item  {b)  tor  ftrit/htsy  this  consists  of  three  ehutns: 

1.  Tlie  Harriet  Stevens,  p.  1 7!K — It  will  be  found,  at  page  'M)  of  our  First 
lleport,  that  we  have  made  an  allowance  hi  lieu  of  freight,  and  we  do  not 
think  that  the  additionai  claim  calls  for  a»iy  additional  allowau(M'. 

2.  The  lit/zanfium,  p.  208. — Here  there  is  a  claim  for  ship  and  /night  ()\ 
which,  as  already  mentioned,  we  put  down  $r),7S7  to/reif/ht.  Instead  ot 
this  claim  we  propose  to  make,  according  to  the  principle  stated  in  om 
First  Report,  an  allowance  of  84,000. 

3.  The  Ehen  Dodge,  j).  2(58. — Here  there  is  a  very  large  claim  for/;mv- 
pecticc  earnings.  As  she  had  oidy  been  twelve  days  on  her  voyage,  \w 
think  that  $1,000  will  be  an  adequate  allowance,  in  accordance  with  tlic 
principle  stated  in  our  First  Report,  which  led  us  to  reject  the  claims  iw 
p  r aspect i  I'e  ea  rn  ings. 

We  prefer,  therefore,  that  for  this  cjlaim  (/>)  there  b(^  made  an  allow 
ance  of  .15,000. 

As  regards  item  (c)  for  cargoes,  this  is  ma«le  up  of  the  following; 
claims: 

1.  The  Ariel,  p.  2.?. — Here  there  is  a  claim  of  $78,  which,  though  siiiiill, 
must,  in  our  opinion,  be  rejci  ted  in  accordance  with  the  observations 
which  we  made  at  page  20  of  our  First  Report. 

2.  The  Corriss  Ann,  p.  l.>7. — Here  there  is  a  claim  of  $4,400,  which  we 
propose  to  allow,  because  it  is  an  insuramie  claim,  although  the  fact  ot 
its  being  jnesente^l  at  so  late  a  peri«>d  makes  it  open  to  considerable 
suspicion. 

;{.  The  Joseph  ]'arhs,  p.  2(i!K — Here  there  is  an  insurance  claim  oi 
$3,000,  which  we  propose  to  allow  for  the  san>e  reason,  but  also  witii 
the  same  observation  as  before. 

4.  The  Neapolitan,  p.  270. — Here  there  is  again  an  insurance  claim  foi' 
$8,08(5.    This  we  also  propose  to  allow. 

5.  The  Joseph  Maxwell,  [>.  2(5!>. — Here  there  is  a  claim  of  $2,000  for 
cargo,  which,  in  our  opinion,  ought  to  be  rejected  for  exactly  the  same 
reasons  as  have  been  already  state<l  for  the  disallowance  of  the  claim  tor 
the  vessel. 

6.  The  Daniel  Tronhridge,  p.  207. — We  have  already  mentioTied  that 
we  ascribe  $5,000,  part  of  the  claim  advanced  in  respect  of  this  vessel, 
to  cargo,  and  we  propose  to  allow  it,  although  not  without  much  doubt, 
especially  on  account  of  there  being  a  combined  claim  for  cargo  ami 
outfit,  of  which  it  is  impossible  to  know  how  much,  if  any,  should  be 
ascribed  to  cargo. 

These  allowances,  in  respect  of  the  additional  claims  for  cargo,  amo.iiit 
to  $21,18(5,  and,  deducting  as  usual  12  per  cent.,  we  propose  that  there 
should  be  made  an  allowance  of  $18,(554  in  respect  of  the  item  (c)  ot 
$23,270  for  cargo. 

As  regards  item  (<•)  for  personal  efects,  it  consists  of  the  toliowiiin 
claims: 

1.  The  General  Berry,  p.  172. — Here  the  Master  atid  Chief  othcer  claim 
$1,207  for  loss  of  personal  effects.  We  think  that  $700  will  be  ade(inat<' 
coujpensation,  viz,  $500  for  the  former  and  $200  for  the  latter. 

2.  The  Daniel  Trotrhridge,  p.  207. — Here  the  Master  claims  .*!,rt72, 
although  in  the  "  Former  Statement"  he  claiuu'd  the  extravagant  sum  of 
$7,(545.  In  our  First  Report  (p.  30)  we  made  him  an  allowance  of  -^l.ti*'*') 
ami  see  no  reason  to  increase  it. 

3.  The  A.  a.  Bird,  p.  275.— Here  there  is  a  claim  of  $30(>  by  the  o1He(Ms, 
for  loss  of  personal  effects,  which  we  propose  to  allow. 


ANNEX  C. KEPORT  OF  THE  BOARD  OV   TRADE. 


335 


4.  The  M.  Y.  Davis,  p.  185. — For  tho  same  reasons  wliicli  led  ns  to  re- 
ject the  new  claim  for  this  vessel,  we  propose  that  this  claim,  which  is 
likewise  presented  by  ^Messrs.  Lawson  and  Walker,  should  be  disallowed. 

Wo  therefore  think  that  for  the  claim  (e)  of  $4,()t;{,  for  Ions  of  personal 
I  pets,  there  should  be  allowed  $1,000. 

"  The  result  at  which  we  have  arrived,  in  reference  to  this  class,  may 
therefore  be  exhibited  in  the  following  form  : 


Ani't  claimed.   Disallowed.      AUowi  d. 


(I,  Vcssfils.. 
ii.  Freights 
' .  Caifjoes 


Diiniiifjes . 


itil ;')!»,  177 
21, 1.%  ! 
2:?,  270 


!?  If),  r)77 

lH,%ti 

4,(iu; 


I.  reisoiiiil  ette. 


4,  04:$ 


;{,  04:$ 


207,  f)46 


73, 21)2 


)S!112,.')00 

.'■),  000 

lH,(J.'-i4 


1,000 


i:{7,  ir.4 


m{>li  .small. 
)serviitioiis 


CORRECTION    AND   ('OMBINATION   OF   ALLOWANCES. 

The  following  table  exhibits  the  results  we  have  arrived  at  as  above 
lueutioned  in  respect  of  the  Additional  Claims,  contained  in  the  lievi.spd 
Statement  arranged  (X)  according  to  Claims,  (Y)  according  to  Interests, 
Z)  according  to  the  Cruisers. 


(X)  Clacses. 

(V)  Intt'reuts. 

(Z)  Cruisers. 

Claims. 

Allow- 
aucKH. 

1 

(Haiius. 

Allow, 
anees. 

A 

1 
*297,  99!t'  m,  099 

:«)C,52a   126,800 
042  235!  274  134 

Vessels $048,  898  ?2;»4,  755 

Earuiii"s                      181  103      .    

Alabamii 

Koston 

$440,  989 

»83,  729 

i; 

('hie.kainaiiKii  - 

Florida 

(Mareiice 

Taeoiiy 

Georgia 

.TelV.  Davis  .... 

Nashville 

Jtetributioi) . . . 

Siillie 

Slieiiuniloah  . . 

Sumter 

Tallahassee  . . . 

87,  410 
4,'i.'i,  811 
39,  022 
03,  892 
32,  184 

7,  7,')2 
38,  897 

8,  (ie3 
"i4.Viii 

149,041 
l.'iO,  840 

40,  14fi 

203,  027 

11,880 

49  240 

r 

Freislits 140, 082     30,  404 

1 

Cargoes 473,  83o'  374,  958 

Daii.ases 97,  883 

lVr.s.iiial  .-tteets           78, 478       9,  121 

1 

II 

IG.'i,  872 
207,  C4(i 

95,  877 
134,  328 

2,  IMIO 

}-..¥ 

23,  724 
1,320 

98,  705 
07,  947 

1,  02(1,274    049,238 

1.020,274    »)49,238 

1,  020,  274 

0(9,238 

le  ollii'tn's. 


Before  proceeding  to  combine  the  foregoing  allowances  with  those 
made  in  our  First  Iteport,  so  as  to  arrive  at  tlie  allowance  in  rcs[»ect  of  all 
tlio  claims  contained  in  the  "  lievised  Statement,"  it  will  be  necessary  to 
'liaw  attention  to  some  alterations  which  should  be  made  from  the 
toriner  alhncances  ;  i)artly  on  account  of  the  withdrawal  of  some  of  tho 
vkims  contained  in  the  "  Former  Statement,"  and  partly  on  account  of 
""Oiiie  corrections  the  propriety  of  which  further  investigation  has  led  us 
to  make.  It  was  stated,  at  p.  5  of  the  Piesent  lleport.  that  the  claims  iu 
rt'spoct  to  lour  bonded  whalers,  amounting  to  $208,000,  have  now  been 
«itli(lia\vii,  and  that  three  other  c7«/hj«,  for  vessels  and  freights,  have 
''ton  KMliiccd  by  (altogether)  the  sum  of  $01,4r»0.  The  last  three  reduc- 
'ioiis,  it  is  to  be  observed,  do  not  give  rise  to  any  diminution  of  our 
I'li'iiu'r  allowauvvs,  because  these  were  based  on  our  average  estimate  ot 


i 


i'^  ■^ 

M 

*i': 
%»';■' 

ir-  S-  ■  ■ 

i    r4* 

mn^ft^m^r^^^ 


»» 


i 

i 

¥ 

m 

336 


imiTrSH    ARGl'MENT. 


the  valiios  of  the  ships,  aiul  not  on  tho  .ictual  amounts  contained  in  the 
statement;  but,  on  the  other  hand,  it  is  clear  that  the  withchawal  of 
tlie  claims  i'ov  the  four  bonded  whalers  must  cause  a  deduction  ot  .*i;}(;.()(ki 
froju  onraUowance,  this  being  tlie  amount  whicli  wo  allowed  in  our  Kirst 
Iveportfor  those  four  vessels. 

We  will  now  point  out  the  corrections  which  our  First  Keport  scoius  to 
us  to  require: ' 

Jn  the  first  place,  the  claims  made  in  respect  of  the  Texana,  captuioil 
by  the  IJoston,  ami  in  respect  of  the  lletsy  Ames,  ca])tured  by  the  8allio. 
must  undoubtedly  be  rejected,  for  the  reasons  stated  at  p.  2  of  the  l>iit. 
ish  Counter  Case.  These  were  respectively  8 K)()  and  .*.">,54().  in  oiii 
"  First  lleport "  we  made  no  allowance  in  resjject  of  the  claim  by  tin- 
Texana,  for  other  reasons  therein  named,  but  for  the  ]»etsy  Aiiics  wc 
allowed  the  amount  of  claim  less  V2  pov  cent.,  or,  in  all,  84,87i"). 

The  allowance  made  in  our  First  lleport  for  the  values  of  the  vessels 
beloiifjing  to  Class  U  requires  an  achlition  of  87,000.  On  referriii;i 
namely  to  the  foot-note  at  ]>.  20  of  that  Keport,  it  will  be  found  tliat  we 
supposed  there  were  ;flce  vessels  mentioned  but  not  claimed  for  in  tlie 
Former  Statement,  whereas  there  were  in  fact  only /owr,  the  vessel  wliicli 
we  had  erroneously  included  among  the  live  being  the  Palmetto,  of  ITI 
tons.  "We  have,  therefore,  to  add  an  alloiranve  for  the  value  of  this  ves- 
sel at  our  average  rate,  amounting  to  87,000. 

In  the  second  place,  a  closer  examination  of  the  claims  made  for  cai-jto 
iu  the  Former  Statement  when  compared  with  those  in  the  Original  List 
and  in  the  Kevised  Statement  has  enabled  us  to  discover  the  followinjr 
cases  of  douhle  claims  for  single  losses,  in  addition  to  those  commented  ou 
at  page  27  of  our  First  Keport: 

1.  The  Union  Jack — George  A  Potter  (p.  O.l  of  the  Former,  and  p.  Ill 
of  the  "Kevised  Statement,''  "Alabama,"  Class  C)  advances  a  claim  in 
respect  of  cargo  of  834,520,  whilst,  at  the  same  time  the  Atlantic  Mutual 
Insurance  Company  claim  in  resi)ect  of  cargo  832,014,  so  that  the  latter 
sum  must,  of  course,  be  deducted  from  the  allowances  we  made  iu  our 
tirst  report. 

2.  The  Charter  Oak— (p.  182  of  Former,  and  \\  2.11  of  "  Kevised  State 
meut,"  Shenanadoah,  Class  C.) — Here  the  Manufacturers'  Insunuut' 
Company  claim  83,.">00  as  insurers  on  cargo,  and  the  Columbian  lusur 
ance  Company  likewise  claim  the  same  amount  as  re-insurers  for  the 
former  company.  This  is,  therefore,  a  double  claim,  and  83,500  must 
also  be  deducted  from  the  allowances  made  on  our  First  Keport. 

These  deductions  from  allowances  made  under  our  First  Keport  iu  le 
spect  of  cargo  make  together  835,514,  which  amount,  however,  nnist  be 
diminished  by  the  12  per  cent,  already  taken  otf.  AVehave  therefore  to 
deduct  831,253  in  respect  of  cargo. 

In  the  third  place,  we  have,  after  considei"able  doubt,  arrived  at  tlie 
conclusion,  that  it  would  perhaps  be  better  to  include  in  our  "»(//()»• 
ances  for  freights  "  some  i)art  of  the  expenditure  which  was  taken  iuto 
account  iu  our  valuation  of  the  vessels  and  their  outjits. 


'Tliero  arc  also  the  followiiijr  irmta  in  our  First  Report: 

r.  "^4. — Fourth  paragraph  from  bottom,  for  "  carj^o  ot"  Kraiu  "  rea<t  "  cargo  of  guano. 
•J4.— Third  line  from  bottom,  for  "  Mr.  UnfuslJrcen^  read  "  V.  R.  Green." 
'i'i. — Sixth  lino  from  bottom,  for  "Mr.  Hufns  (Jreeu  "  read  " C.  R.  Green." 
•J7. — (8ea  Bride,)  for  "  R.  (Jreen  and  Co."  read  "  Rufus  Greene  and  Co." 
•28. — Table  sln»\viug  amonnt  of  claims,  &c. : 

Alabama,  (amount  claimed,)  for  "^C),."):'",?!!"  read " ^fvMJT.tVJO." 

("hickamauga,  (amonnt  allowed,)  for  "^rtO,108"  read  "*80,llrt." 

Georgia,  (amount  allowed,)  for  "  $'.J.'>7,0:J1 "  read  "$>i21,0;il." 


AWKX    (• 


-KKrnKT    OF    THE    UOAKD    OK    TUADK. 


:\:m 


it  will  be  roineinlxM'cd,  that  ill  the  iiitrodiictorv  part  of  our  V'n  i  lleport 
we  fully  exphniied  that,  in  our  opinion,  the  claiiif  of  fp-oss  freight  could 
not  be  allowed,  and  that  ade(piate  eonipensation  would  be  granted,  in 
Inspect  of  the  claims  for  the  losses  of  the  vessels,  their  outfits  and 
trei},'hts,  if  to  the  original  values  of  the  vessels  were  added  all  the  ex- 
jieuses  incurred  by  the  owners  for  the  pur[>ose  of  the  voyages  up  to  the 
time  of  the  eajtlior,  together  with  interest.  We  luul,  therefore,  to  esti- 
mate the  values  of  the  vessels  antl  their  outfits,  including  the  expenses  in- 
nm'C([  i'ov  i)vovisioninfi  them  uud  makinij  them  Jit  ami  ahle  to  leave  port, 
aucl  to  add  thereto  the  expenses  invurretl  from  the  eommenvement  of  the 
roj/ages  vp  to  the  time  of  capture,  toijether  with  interest. 

h  will  be  found,  on  reference  to  page  Hi)  of  our  First  Jieport,  that  we 
considered  the  price  of  HflO  i)er  ton  to  be  a  ''liberal  estimate  of  the 
iiverage  market  pri(!e  on  which  the  value  of  vt^sselsa^  the  eommeneehieni 
of  their  voyages  might  be  safely  based,"  and  we  therefore  took  that  price 
(if  $40  per  ton  as  represeuting  the  average  value  of  ships  and  their  outfits. 
together  with  the  crpenses  neeessarg  for  rendering  tliem  fit  and  ahle  to  leave 
port.  These  expenses  we  estimated  on  the  average  at  il.J  per  ton,  leaving 
for  what  may  be  called  the  "  naked  value"  of  tlie  ship  and  her  outfit  a 
sum  of  $.'>7  per  ton ;  a  sum  which  we  considered,  and  still  consider  to 
be,  on  the  average,  amply  sutUcieut.  The  expenses  to  which  we  have 
just  referred  would,  no  doubt,  depend  in  each  particular  case  to  a  con- 
siderable extent  on  the  length  of  the  voyage,  the  employment  of  the 
ship,  on  her  carrying  general  cargoes,  or  carrying  a  given  specific  cargo, 
tin  her  being  loadetl  or  being  in  ballast,  and  on  other  similar  circum- 
stances; but  we  were  and  still  are  of  opinion  that  such  expenditure 
will  on  the  whole  be  fully  covered  by  the  average  allowance  of  $.'}  i)er 
ton  on  all  the  vessels.  It  should,  moreover,  be  observed  that  we  have 
also  left  ourselves  a  considerable  margin,  inasmuch  fis  we  have  made  no 
exception  in  the  cases  of  those  vessels  for  which  freight  is  not  claimed 
probably  because  it  has  been  received  from  English  underwriters)  and 
which  therefore  clearly  are  not  entitled  to  this  allowance. 

As  the  estimate  of  >*M)  per  ton  of  the  vessels  includes  the  allowance 
i)f  'j.'lper  ton  for  the  expenses  of  making  them /if  and  able  to  leave  port, 
it  follows  from  the  i)rinciple  stated  at  the  commencement  of  these  obser- 
vations, that  we  had  only  to  add  for  the  vessels  claiming  freight  an  allow- 
iince  in  respect  of  the  expenditure  incurred  from  the  commencement  of 
the  voyage  until  the  capture,  together  with  interest,  and  it  is  this  amount 
which  we  put  down  in  our  First  lleport  as  the  "allowance  for  freight." 
Aitliongh  this  was  for  several  reasons  convenient,  it  has,  no  doubt,  the 
t'lh'ctof  concealing  the  fact  that  the  allowance  actually  made  in  respect 
of  the  claims  for  gross  freight  not  only  comprised  the  last-mentioned 
iiiiount,  but  also  the  other  allowance  of  *;j  per  ton,  and  we  think  that, 
as  the  form  in  which  the  claims  are  presented  renders  it  almost  neces- 
>^iirv  to  award  a  separate  allowance  in  lieu  of  freight,  it  may,  on  the 
whole,  be  better  to  make  it  include,  not  only  what  we  termed  in  our  First 
lleport  "  the  allowance  for  freight,"  but  also  the  ^'S  per  ton  for  the  e.v- 
pcnai's  of  maliiig  the  vessels  Jit  and  ahle  to  leave  port,  and  therefore  to  de- 
'luct  tliis  latter  ann)unt  from  our  estimate  of  tlie  values  of  the  vessels, 
wliidli,  as  we  have  already  said,  included  these  expenses.' 

This  alteration  is,  however,  a  matter  of  comi)aratively  small  impor 
tauce,  since  it  of  course  oidy  affects  the  distribution  and  not  the  amount 


'  Striitly  sjM'akinjj.  tilts  iillowniice  in  lioi  of  frrU/lil  iiuliidcs  also  an  auionnt  oqniva- 
Ifiit  to  tins  wi-ar  aiul  trar  oltlic  vessel  up  to  the  time  of  (.'rti)tiire,  ituusmucli  as  wo  have 
illowt'tl  tile  orifiuiol  value  of  the  vessel  at  the  eoninieiieeineut  of  the  voyH<je. 


4 


1 .'  "t ' 

^illi 

,i«l 


338 


HRITISH    AIJOr.MKNT. 


of  our  former  aIlowiin(5e8,  and  is  only  mmU'  for  the  piirpost'  of  sliowinfr 
somewhat  more  clearly,  what  we  did  actually  allow  in  our  First  iJj'poit 
in  lieu  of  the  claiim  for  freitfht. 

AVe  now  i)roceed  to  combine  the  allowances  in  respect  of  the  clniriis 
contained  in  the  Former  Statement  with  those  in.respe«!t  of  tlic  (hIiU. 
tional  claims  contained  in  the  Kevised  Statement,  in  order  Ut  asci'itain 
the  compensation  tor  all  the  lossen  mentioned  in  the  latter  Stateinciit. 

The  allowances  made  in  our  First  Keport,  as  altered  in  amount  a\u\  in 
rangement  accordinjj  to  the  fore^joinjj  considerations,  anftullycxlijldtcl 
in  Table  No.  2,  but  are  brielly  summarized  in  the  followin<,j  form: 


'>!%■ 


AIloWillK'l'   ill    fcspi'ct  of 


Ill  rc'SiM'ct  III'  hili'ii'sts. 


Ill  Ifsiiirt  111'  t'liiiHi  i>. 


A. 

n. 


0 I,  l-iti, *'>1     Ciilgoii 


I)  . . 

K.  K 


:t:t!i,  ,">i  \  Diiiiiii;,'i'.s 

litt,  4:17       l'rlsi>ii:il  rdicts 


7,  !I74,  ,V>7 


*l,  74ri,  i'il  I  VcNSflrt  and  oiUfltM *:«.  U37,  »:»0  I  Aliilmniii 

I  ItiiHlmi 

I,  ti'Jf,  ii'.H      Kroi^jhls  ami  ciiriiiiiyM   h1-J,  o:w     ('liirkiiiiiiiiiKii . 

I  .   I'liiiiilii    

:j,  70l>,  MO      (ir.iri;iii 

!  I    XilNllVillc 

,     (is,  AW  I  Iti-ti'iliiiliiiii    .. 

I  Siilli.' 

I4«i,  I'lQ!)  ,  Slii'iiaiidoiili  .. 

1  SlIlllllT 

'I'lillttliUNm't'. .. 


7,  !t74,  :i.-)7 


*:i,a«7,i;> 


Hl.ll- 

•.'.  ii:).-..  .-j;. 
•-•.■il,  11.11 


ti-i  mm 
17.  ;iii 


I  :i;tH,'j;;i: 

4,  ii:hi 

;m,-.;::. 

7,!I74,X: 


To  these  allowances  we  have  now  to  add  the  allowances  we  haveaswr 
tained  in  our  Tresent  Keport  for  the  additional  claiius  contained  in  the 
Uevised  Statement;  and  the  result,  which  is  fully  exhibited  in  TabiisNo. 
.'{,  is  brietly  seen  also  from  the  following;  table     iid  jjives  the  total  alloir 
ances  ive  propone  for  all  the  claiins  contained  in  the  Rerised  Statement. 


Total  AllowaiicoH  in  rt'f- 
rrciii't)  to  Claws<'M. 


Ill  ri'frrriu'f  to  Intrrrst.f. 


Ill  ri'ft'roiior  to  CniiRpiM. 


iil,7ti:i,M0  ,  Voswlnaml  outlits *3,  47-.',  (iiTi     Alabama. 

lio.stllll  . 


R 1,  7r)."i,  (i!t4     KarniiijiiH  anil  riTJKlitH  . 


(; :     4,  40-J,  n88      Cartoon 

I) I        4:i."i,  4-J8     Damages 

K.  K -Jlili.  7ti.')      I'l  r.siiiiiil  I'lli'ctn 


1  ('liirkaiiiaii);a 

842,  I3(i      Fliiiiila 

Clarciiro 

Tiifoiiv 

4,0r'l,  478     (iroi«ia 

.Iitf.  IMivis 

<i8,  44(i     Niisjivijli- 

Kl'tl'llMltioU  . .. 

I.V.,  7riO     Siillii' 

Slii'iiMiiiliiali  .  ■ 

SlIlllllT 

TallaliiiKsro .  . . 


:;:h 


W.r)i.iic 

iifi,-.iii  I 

!Ki1,;il,"i 


rti.  ki  I 
I'.I.Kl 


H,  ii-j:t,  vxt 


f,  \fS.t,  vx< 


Kii.'l' 


SL.MMARY. 

We  now  proceotl  to  i;i\«'  ii  suinniiiry  of  the  results  we  Imve  iuiivcil  ;i;| 
ill  respect  of  all  the  claim.s  (;oiitiiiiu'(l  in  the  Kevi.sed  Slateiiieiit : 

'['111' ini'.;r('i;;it<' aiiKiiiiit  claiiMiil  in  Hint  Stati'iiii-iit  is sj.'i,  .'>(T,  1  !  | 

Hut  tlii.s  iiiiiiiMiit  ImcIikIi's  it  claim  Inr  iiirrcasi'il  iiiMUiiiicc  |iic- 

iiiiiim.",  iiiiiniml  in;;'  ti) •*•">,  f^".-',  (liji; 

And  also  a  cliiiii  st\  lid  "  .\Ii-ircllai>c(iiis,"  iiiiiomttiiio;  in J7l»,  (»;>:> 

For  ii-asdiis  si;iit'(l   at    pai^n    I  oC  lliis   |{i'|»(iif,  tlicsn   last  two 

claims  must  In-  riji-ctcd,  ami  there  an-  certain  eriiirs  in  tiie 

ruiiiies    |ii'iiiti'il  nut  at  jia^i'S  l  and  .">  til'   tliis  Ik'eiioil,  wliicli 

oil  tlio  wlioli;  iieci'Sfiitulu.i  a  tlc<liictii)ii  oC 17li,tt~'J 


I  cicving  aw  I  lie  aii'onnt  of  cliiiin  t.o  which  onr  allowiiure.s  upplj  - 


llt.i'S!,:::' 


AXNKX    (". KKroHT    OF    TIIK    MOAKD    OT     IKAUK,  '.\i\d 

The  inamuM-  in  \vhi(^h  this  amount  is  (listiibutud   over  the  various 
ciiiiins  is  exhibited  in  the  t'oliowiny;  table  : 


W 


^ij 


In  rifi'ii'iirc  toCliiNSi'M. 


In  n  rciTiit'i'  to  Iiilt'icxtn. 


A  «H.  M7, 

l;    :t,  107, 

(•        •),  l:til, 

r» H.-T. 

K.  K ">l>l. 


141 

Kll 

If  I 


in,  OKI,  7lrt 


VpMHflu  iind  oiilllt-t ♦<;,  !Mio,  liH 

Kiiniiiius  anil  rii-l);litH  . . .  ti, -Jl*,  ini 

Cat^Kcs  ■*,'.)',:{.  lilt 

Daniiim'.M  tiDI,  :IIT 

^^^l•»onal  rll'i(I.H ;t.'>rt,  ■;  I-. 


I 


III,  (iK»,  r.\H 


III  nil  Ti'Mcr  III  CiiiiscrM. 

Alaliamii |  ifti,  !t."il,  l."i!( 

Kiislnn I  ino 

('liirluiinaii;;il It'll,  071 

Kliiiiila 1 

Claniui- [.  I,  IH,-i,(W7 

'I'ai'iin^v ) 

(liiifSini IKi,  ll'iO 

.litr.  havin 7,  7.VJ 

Naslivill.' ..  KM,  4:i| 

KrtrihiitiiHi yii,  OIH 

Sallii- .-.,  .-.■to 

siiiMiiiiKloah li,  :io:t,  o;t!i 

SiimtiT l.v.t,  7:tii 

TMllaliaHsi'f 7;U»,  fO-J 

I  l!t,iif:i,  7:iH 


CJ 


CI'  to  CniiKiMs. 


I. — As    I'O   TIIK    VKSSKLS    AM)    Oll'I  "US. 

For  tln^  reasons  stated  in  our  First  IJeport  we  have,  with  scareely  any 
exception,  vahu;d  tin*  wiiaier>*  at  ."55100,  the  lishinj^- vessels  at  •■?.")(>,  and 
the  other  vessels  at  >?  10  per  ton  at  the  cotnmcturment  of  their  roi/affis, 
iiit'hulin^v  therefore  the  expenses  necessaiy  for  making;  them  ready  for 
sea.  We  have  also  shown  that  in  tiie  cases  of  the  whalers  captured  by 
the  Shenandoah  it  is,  with  the  ex«*eption  of  two  or  three  cases,  clear, 
from  the  very  adndssions  of  the  owners,  that  they  arts  advancinj?  claims 
lor  the  .sanie  los.ses  simultaneously  M'ith  the  insuraiu'e  comi>anies,  and 
that,  in  a  great  majority  of  the  <)ther  eases,  a  similar  course  hasj  to  a  very 
l^reut  extent,  been  a<h)pted.  The.se  considerations,  to<?etln'r  with  the 
circumstance  of  the  owners  liavin*;'  considerably  overvalued  their  prop- 
irty,  will  snllicieiitly  aceoinit  for  the  re<Iuction  in  the  amount  of  oitr 
nUoiramrs  as  contrasted  with  f/tf  amount  of  the  claimn  for  ressi  Is  and 
iiutjit^s. 

11. — As   TO   TIIE   FREIOHTS   AND   EAKNIN(iS. 

It  is  easy  to  prove  that  the  amounts  at  which  they  are  stated  are,  be- 
voml  a  doubt,  most  extrava;;ant,  antl  that  they  in  many  cases  involve 
ihublc  claims  for  single  losses.  We  have  also  explained  at  leuf^th,  in  the 
introductory  part  of  our  tirst  report,  the  various  jjjrounds  on  which,  inde- 
iK'iidontly  of  its  exaj* "•crated  amount,  this  claim  for  (fross  freights  and 
tjrons  earninj^s  is  utterly  incapable  of  beinj;'  supported,  and  why  it 
should  in  our  opinion  ho  rejected;  and  in  lieu  thereof,  such  an  allowance 
W  iiiiide  as  would,  as  far  as  is  leji'itiinate.  or  ])os.sib!e,  satisfy  tlu^  [n'inci- 
\>k'  i){  restitutio  in  integrum,  hy\AiH''u\}i  the  claimants  almost  in  tlu^  same 
I'lisitioii  as  if  they  had  \U)t  einl»arlved  in  the  iiiisiicces.stiil  adventure;  an 
iiHowance  wliii^h  is  far  mure  liberal  than  that  which  has  been  awardi'd 
i'.v  the  courts  of  America  in  similar  cas«'s.  This  allowance  we  have 
fstiinati'd  at  s^S  1"J,  l.i«»,  which,  when  added  to  our  allowance  for  vessels 
"mi  (iidiits  and  expenses  ineurred  in  malimj  the  shipn  ft  ami  able  to  leave 
;'"/•/,  amounts  to^  I,.{1."), I'JI,  and  will  in  our  opinion  lairly  cover  all  losses 
ill  resiu'ct  of  tlu^  ressels^  their  ouljits,  €aruin<)s,  and  claims  for  freiijhts. 

111. — As   TO   THE   CAlUiOES. 

As  rcfiards  the  elaiius  for  "  carefoes,''^  it  will  be  .seen  from  the  intro<luc- 
tory  part  of  (uu-   First  Keport  that  the  form  in  which  these  claims  are 


^Jl 


iPil^'WW 


' 


v^  I 


m 


n4(> 


IMMTISir    AKUl'MKNT, 


l»r('.s(»iit«Ml  1ms  romli'ictl  it  iin|u)ssil»U>  to  ns<M»itaiii,  cxropt  in  coinpaiH 
tivoly  r»'\v  <!ii««\s,  t«)  wlijit  oxtoiit  tlu'y  iiiv(»lv«'  (hmhir  vhtutiH  j'nr  HiuifU- 
hmxcH,  as  well  as  proJits  ami  the  tivij^lit  payable  at  the  port  of  <lisrliur<,'(' ; 
aiul  wc  tlHTO  fully  stated  lh((reas«uis  why  we  entertain  no  doiiiit  that  il, 
from  the  total  amount  elaimed  for  car;;'oes,  ]>rotits,  eonimissions,  aiitj 
insurances  thereon,  iL'per  cent,  be  deducted,  the  residt  so  obtained  will, 
in  all  probability,  exceetl  the  real  value  of  the  jjoods  at  the  port  of  sliip 
ment,  to^jether  with  inteiest  irom  the   time  of  h)adinfr  until  captuic. 
We  also  explained  that,  by  awartlinjf  this  compensation,  and  then-liy 
placiu};  the  owners  in  the  same  position  in  which  they  would  have  been, 
if,  instead  of  (Mubarkin^  their  capital  in   the  .shipnuMit  of  the  i^oods, 
they  had  invested  it  at  the  ordiiuiry  rate  of  interest,  we  were  adoptiii}- 
a  mode  of  (rompetisation,  not  oidy  consistent  with  well-re<'o^-ni/(Ml  prin 
ciples  of  iurisprudenco,  but  also  more  liberal  than  that  which  has  evor 
been  applied  by  the  courts  of  the  Tnited  States. 

In  some  cases,  distinctly  spc^'itled  in  our  l{ei»orts,  we  have  been  aide 
to  dis(;over  that  the  owners  and  the  insurance  companies  are  siiiuilta- 
neously  advancinjj  claims  for  the  same  losses.  In  these  cases  we  have. 
of  course,  deducted  one  of  siu'h  double  claims,  and  these  deductions, 
together  with  those  in  respect  of  one  or  two  claims  which  we  liavc 
sjiecially  noticed  and  jfiven  our  reasons  for  rejecting,  amounted  to  about 
$.{4(),(K)0.  Aftei"  taking  off  12  per  cent,  from  the  residue  of  the  total 
<!laim,  we  thus  arrived  at  the  sum  of  ^4,084,478  as  the  allowance  for  the 
wirgoes.  I  Jut  although  we  have  provisioui'dly  estimated  the  loss  at  this 
amount,  we  think  it  right  to  repeat  that  in  our  opinion  this  estiinatf 
will  be  IVnind  to  be  excessive,  not  only  for  the  rea.Hons  stated  in  our  First 
lleport,  but  also  because  the  additional  claim  of  $47iJ,8.'JO,  advanced  tor 
catyo  in  the  "  Revised  Statement,''  isopento  very  considerable  suspicion 
on  account  of  the  p«'<uliar  circumstances,  fully  stated  at  pages  11  aiKllL' 
of  this  Iteport. 

IV. — An  TO  CLAIMS  FOK  DAMAvJHS  AND  PKU.SONAI.  HFl'KCTS. 

As  regards  the  claims  for  tiamagefi,  we  have  in  almost  all  cases  n- 
jected  them,  because  they  are  in  ettect  claims  in  resjject  of  indirect  losses. 
or  for  damages  of  too  remote  and  contingent  a  character  to  entitle  tlic 
claimants  to  compen.sation. 

As  regards  the  claims  for  personal  ep'eetti,  we  have  generally  specitii'd 
the  ca.ses  in  which  we  consider  them  excessive,  and  have  come  to  tlif 
conclusion  that  the  sum  of  !J!!lo.">,7r)0  will  cover  any  loss  for  personal 
effects  which  can  bei>roved  to  have  been  sustained. 

^^ — I'KSi  i.T. 

The  ultimate  result  at  which  we  have  arrived  is  the  following  : 
The  total  amount  of  the  claims  we  have  been  considering,  that  is,  all 
the  claims  contained  in  the  "Revised  Statement,"  exclusive  of  those  t'oi 
increased  war  premiums  and  the  claims  styled  "  miscellaneous,"  (all  ot 
which  are  "  indirect  claims,")  and  after  correcting  certain  errors  of  cat 
culation,  and  withdrawing  those  for  the  Sallieand  Boston,  is  !jtl9,(i77,7!>S. 
We  are  of  opinion  that  the  sum  of  $8,023,70.5  will  be  amply  sutMt'i(Mitto 
meet  all  the  losses  embraced  in  these  claims. 

The  following  arrangement  shows  the  amount  of  the  claims  connected 
with  each  cruiser,  after  adjusting  the  several  corrections,  on  wliicli  wc 
have  reported  ;  and  also  the  corresponding  estimates  we  have  niiilo  iis 


^i- 


ANNKX    (\ — KKI'ORT    <»K    TIIK    HOAKh    oK   TRAI»K. 


Ml 


fully  >Ml«M|uato  ti»  iiioi't  all  tliu  lossi^siuMii.illy  susfiiiiiud,  wlii(;li,  howuvur, 
.{WKuhject  to  the  I'CHvt'mtionH  iiictitioiHMl  in  our  First  Urport : 


CluiiiiH  on  iici-utint  of— 


AniDiiiitM 
clililllrtl. 


AlllllUlltH 

iillowtMl. 


K  f' 


Aiiiimniii ijio,iiri4,ir)y    )ji:i,  :jr»i ,  407 

lloNtori 

(liKkiiiimugti IKl,  (»71           I'jc;, '.i»>4 

Horiila )  * 

( iiuviiir '  I,  if^.'-.tw     ',', '.Hio, :uri 

liiridiv ) 

(i.M.i>;iii iKi.ltMt           v>.'):«,»Wl 

JclV.  Davis 7,riVi    

Naslivillf l(IH..j:{4              h;,  «>\i.| 

IMiilMitidii •.';»,01H              ll»,(l',>l 

Salli.' 

siicnaiuldiili ♦!,  :nt:»,  ():w  ;    1 ,  :»:jh,  4:iti 

Miinti'i- l.VJ,  7:tti            10-i,  H15 

hillaliassff 7;M),  H(J'2           :{rtr.,  'i'i'i 


!'*», 


iit,077,7iw     d,w;»,7!»r. 


% 


Tlie  r<'servHtions  to  which  we  hav«'  aWove  rcferriMl  are  the  follow- 
ing,' : 

1. — The  question  whether  (rreat  Britain  is  liable  lor  any  of  the  losses 
wliidi  are  the  snbject-inatter  of  these  claims,  and,  if  for  any,  for  which 
(if  tliein,  is  a  question  with  which  we  have  not  been  concerned ;  and, 
keepinj;  ch^ar  of  what  was  not  within  our  province,  we  have  studiously 
ronliiied  ourselves  to  the  task  of  siftinj;"  and  analy/iny  the  claims,  and 
of  iiscertainin{>'  what  in  our  opinion  ouj^ht,  accordiii};'  to  wellrecoji;nized 
|tiiii(!iples  of  jurisprudence,  to  be  considered  adequate  compensation  tor 
till'  losses  occasione<l  by  each  of  the  Confederate  cruisers. 

II.— The  data  which  thestatementof  claims  applies  are,  in  several  mate- 
liiil  respects,  so  scanty  ami  so  imperfect  that  we  do  not  pretend  to  have 
(stiiiiated  the  allowance  for  each  particular  claim  with  complete  accuracy, 
liiit  we  believe  we  have  shown  that  there  are  valid  and  strong  grounds 
for  concluding  that,  if  ever  these  claims  come  to  be  thoroughly  sifted 
and  examined,  our  estimate  will  be  found  to  be  in  all  respects  a  very 
lilu'ral  estiniate. 

NOTKS. 

I.  There  is  one  consideration  to  whi«'h  it  may  be  priqn'r  for  us  to 
ilirect  attention,  viz,  the  value  of  the  "currency"  dollar  as  compared 
with  that  of  the  "gold  "  dollar.  We  have  no  doubt  that  the  claims 
loinprised  in  the  statement  are  made  in  the  "currency"'  dollar,  and  it 
appears  from  the  claim  in  the  case  of  the  Morning  Star  (p.  48  of  this 
Itoport)  that  the  value  of  that  dollar  may  be  taken  to  bear  to  that  of 
tli«  gold  dollar  the  ratio  of  5,G14  to  7,744.  lu  reducing  the  total  amount 
of  our  estimate  of  allowances  into  "  gold  "  dollars  it  must  be  borne  in 
mind  that  so  far  as  it  relates  to  the  claims  for  ships,  freights,  and 
(lainages  it  has  been  made  in  "  gold  "  dollars,  and  therefore  that  it  is 
only  nece.ssary  to  reduce  the  estimate  in  respect  of  cargoes  and  personal 
(ffects  into  tbo  same  currency.  The  total  amount  of  our  estimate  of  all 
tbe  losses  alleged  to  have  becui  sustained,  when  thus  reduced  into  gold 
dollars,  may  be  converted  into  pounds  sterling  according  to  the  proper 
rate  of  exchange,  (which  in  some  instances  to  be  found  in  the  claims  has 


342 


UKmSH    AKUUMKNT. 


been  jis.siinit'd  to  be  .*«1.84,)  ;ni<l  it  will  be  (^n\\\^\  in  all  proliabilitv  u»  iit> 
eonsi»l«'rably  less  tban  Cl,(li»(),()»)(>. 

II.  Wi"  have  appiMnU'd  to  this  loport  Table  W.  wliicli  sh()\v>  tin' 
values  [Mit  i>y  C'a|>tain  Seniines  on  tin*,  prizes  lie  eaptmed,  and  inasimirli 
as  the  captor  generally  considerably  o/er-estiniates  the  value  of  hj^ 
prizes,  we  think  that  ttiis  ta!)le  may  throw  some  li;iht  which  may  pnnc 
useAil  on  the  nature  and  exti'ut  of  the  claims  advanced  for  losses  al!»';j;f(i 
to  liave  been  si;.staiiie«l  l)y  the  Alabama  captnies. 

Arthi  H   CoiIKN. 
SlDMON     Vl>l'.N«i. 

Jr.NE  s,  1S7J. 


Tahi.K  N<(.   1. — Shin'hiii  jirniinsn'ivf   (Hc/rdv   ht    ihr   unioinit  of  ihihti''  for   lofix   inrnifci 
thtouijh  til'  riMjui  lirt  cnn-'i'rx  an  ulaltd  iil  dijt'i rail piriodt. — (.">Vt'  njntrt.  iip.  ;!l(i-o|."!.} 


t»liL-iii;i!  I.isi    Ifidli. 


I'liif.-il  stilt. 


iKDvnicrStii'i'iii'tit '     Itcvisi'il  Si.itf 


.\mcnilf(II,ihl,l''(i!t.    N'oMiiildT,  r-iil.  jural.  Mairli  I-:.' 

i 


I 


t 


I 


f 
1 


k 


^ 

« 

CS 

■* 

Alabama 

IU>8t»ri 

(Jliirkaiuaii;;!! 

I'lori'la 

t'lidiila,  Chiri'iicp 

Florida.  Tat'Duy 

<ii'i)ipa 

JcH'.  Dini.'j 

Iiimlivi'lle 

Ketribiition 

Sail!.'...    

Sbi'iiaiiiloah 

Sumtt>r 

■J'alialias.xpf- 

Oiuslffl , 

lucn-afM'il  war  |ironiiuitiN 
Mi8cell;tn«H/ti» 


r.l  !  »1,',0g. -HI 

ia  i    riniV-jfri 
•1        -jio, -jw 


r>7  i?.v,M-,',  :>(:2 

:r  I :  (,  1 17 

■j:»  ;i,  (i:)I.H4!t 

1  \i:>-M  \. 

1  r-.  IIHI   j. 

'■>  :wt),  ;i5l  ; 


S8 
1 

:t 

3ft 


•26        3,  •£»'),  8(ir> 


I 
I 

S!t 
) 

•I 


70,  :>!<4 

at,  :■)^3 

T), ,'.  1(1 

■1.  r.K),  1(10 

•i,  -I'A) 

97(i,  :<i-> 

73,  H7,'> 


1 
-i 
1 

■to 

3 


*C,  r)47,  (ilO 
lUU 

3,  liilH.  ()0!) 


:!,<•.  !i7<; 


17 


Tutsi 


!ti     !»,  lA  104      i;w  ;  13.  -I)!*.  :m 


Kit) 


•Jf).  xt  I 

.'.,  .140 

(i.  48H,  3ia» 

10,  •>!))) 

r)7!l.  !»,Vi 

I,  liiO,  '<Xt 


I 

4 

30 

•i 

10 


a*i 


l!t,0al,4(i'  I     183 


$7. 1109.  i-j; 

w 

ik).m:i 

3,  ii.Vi  :i,vi 

.'.4,  H-; 

Kill.  I!^ 

Illi.  \U: 

lii-^.  i:u 

•.".I.  Ill- 

.■.,  .'.40 

ti,  1-Jti.  it-.; 

Iti7,ti7.l 

7:ti).  Ml-.' 

.'i,  rtw.  mi. 

47«,  03:1 

8.'..  .147, 1  Iil 

■ts^ 


ipp 


ANNEX    ('. RKI'OUT    OK    TIIK    r.«>AKl)    OF    TKADK. 


;}4:j 


bility  to  !).> 

sllOWs    flii> 

«l  iii;isiiiiii';i 

iiliK*  of  iii^ 

may  piovc 

SSI'S  all»'j;»'(! 

COIIKN. 


lo-ixiK     ilhlllfi.l 


Krv  iscil  Si, ill- 
I'nl.  Miiirli  I-:.' 


.'•>>  1   ifi.  [m.  vv. 


1 

^ll.• 

I 

i>:).  "T! 

:iii 

:i,  it.vi  ;).vi 

•1 

.-.4.  H; 

U)  , 

IliM.  W 

R 

410.  \Ui 

'.' 

KM.  i:u 

•1 

•.".',  Ill- 

1 

.'.  .'.4" 

:i)i 

ti.  i-.ii, .(-.; 

~ 

iiiT.ii:.! 

•)•> 

;:m.  -^i-; 

Ti.  HOH  iH'ni 

••••■ 

4711.  m 

ir:i      itv  r>4",  iiii 


■|'.uu-K  No.  '-i- — Shot  ■hit/  thr  ffniill  of  (he  ronTclioiiH  and  rc-oppnipriittioiin  of  the  rlaimii  and 
llif  conrKitoinliii;/  aiiitiru,  ...•  in  moHmoriix  Ao".  1,  "J,  (iiiit  'A  of  ''  I'irsl  Hcjwrt,''  in  accord- 
itiiit  irilh  our  rvmarkx,  {i'lcmnt  Jieport,  i>i>.  IJ'.Jii-JWH.) 

Si  .MMMiV  iNii.  I.)— CluHxi's  (iiini'ctril  ;iiii\  ri'inraii;;i'il  uh  pir  lii'iiuil.) 

Alliiwaiii'i'H. 

Valiii'  111  (ns  )ici'  rill n  rtnl  Ui'port)  — 
I 

Cl.AS!-   .\. 


(.'liiiiiiN. 


I 


V  (111. 
V.I. 


*I.  731.  417 
'iill.  Iti:i 


K.S. 
HP 
lie  . 


till!,  Tilill 

4,  OK'!,  fill  I    ! 

Ill.lilill 


I'K 


KiL'liI  \vlial«rM(li'tiiiiic<l  (/). 
Less  4  tlitlti  (witliitniwii). . . 

Six  UiiliiiiUvcKxi'N 

K.S 

K.I' 

r  E 


('|..\S.H  u. 


V  imi. . 
1.  V  iM 


1.  ¥  (0 


IC. 


Cl.AtW  I'. 


V   .. 
1,V. 


1.  V . 


V.  E.,  if 


<'l.M*h  It. 


V|.))  .. 
I.V(f). 


K    . 
IK 


I'  K.,  if. 


f  I..VCH  K.  K. 


V   .. 
I.V. 


y ... 

IV. 


c  ... 
It"  (It). 


!■  K 


."iiri.  7 17  ■ 

•ii)!'.  !l!'ti 


*J   ."ll'j   .'iHO 

4,  r"!:!,  7;«) 

! 

7.  »'i(»  i'l;! 

i 

:iMi.  7:.i 

5,  C(N) 
IKM) 


1  n7-.>.  tw-j 
;ifj.  Hill 

4i:i.  1III7 

!KI.  IMHI 
•JIH,  S.id 

r.7(i.  :i(i!i 


4',',  IlliO 


rj4,  H:i() 
tmi 


,Vi!t.  tl.'iU  I 
.'^iti.  144 

i     Mi  14.  io:<  I 

I 
;tl7.  (Hi 


*T.  Hiil,  :«i4 


1    I.Vi  4MI 

:m.  '.K)7 


If.).  ','H» 


!l^l.ll^'4   j 
.m7,  II I -J  _ 

•aw.  rtiti 
i7.-<,  i:ti 


(■  I    l.:t.v.>.7:«i 

\.i'  (h) •,'. -Jrt.-.,  !I4(I 


L.^itc,  lI'Mi 


44,'..'j:i7 


:t,  tiiiH,  (i7(« 
J        Dili,  >j:iH 


44:i,  i»."i 
li-.>.  iiwi  I 

11.  IKHI 


>:>:>,  005 


14.04(1 
■.!,  INNI 


lb.  IIOO 
40,  HOO 


i.iK.  ac;i 

«(»,  071 


l.%4.!H»0 
Iii.<l4() 


li.'l.  Ititi 


•J.  HN),  IIDI 


.".,  7S!I,  147 


7>j  !,»'>» 


9Sm,  4X> 

17, 4S7,  :m 


■X\,  Ttl'i 


#1,74;..  4JI 


I 


*-.-7ii.  7,»ri 


ti4.'i,  I(i7 

i«,  7;i'j 


-I        1 .  li'iH.  -ilM 


m^.  :i'.i.'> 

Kill.  ■*'J!4 


ill)  (I)  ( /)  :i.  iHf.  :w.-. 

.iH,  •.>4,'i 


4.  l-.M,  fir,4 


•«t4,  ;«:iri 
:a.  :b).-i 

ll.H-'l 


xfii.  r>5t 


I'i.  (i;(4 


3r.,lMW 

4.0R0 


i.ia,  417 

7,  974,  5.17 


1 
Is 


m 


TicFw^^*-^ 


344 


fmiTISH    AUCJl'MENT, 


Tahi.k  Xo.  5J. — Shoirunj  the  nuiill  of  the  conettionx  luid  t-e-approjniatioiix,  iVc. — ('oiitiuiiotl. 
Si'MMAiiy  (Xo.  2.) — Intci-eHtH  (corrected  and  ni-arraiiKed  as  i>er  Ucport.) 


i-h> 


A!lowniie<'.' 


Valued  at — 


^ 


Vf^ufi)'  and  oiitlits : 


•  'liiMs  A  (a) 


1! 


i)(.n. 

K.  F  . 


Iii^iiiiinof  tin  diltii 

<1;,!*N    A      


15(6) 


IKc). 
K.  h-  . 


KariiincK  : 
Clajis  A 


luHiiraiicf. . 


D... 
K.  F 


IiiHiiiaiK'i'  ilittd : 

(; 

1) 

K.  V  . 


<  'ar^iiM 


«  lass  II 


D... 
K.  F 


IliMiU'illii'i'  nil  ditto: 


"liis*  It 


I' (A) 
1).... 


K.  F(i). 


*l. 


(i7-.',  (i^a  

!t.-|.(IHI     

n:i,(io:.  

i:>i,ii.-,()  ' 

.V)'.,!1I'J 
I  I-.'.  (Hill 


i.ii!ii.:iiii 

tilf,  «H-j 


*4.  lo:i  :t;(i 


^iiiiilrii'S.  idiiiiai;)''' ■iiid  \»'\ 
wHial  (ii.M'tH :) 


^:Ulstl,  A  (/>. 
U... 
c ... 

I).  . 

K.  F 


ii:i.  :ki7 


■JI-,  M.".(l 

I  :i.vj,  7:tti 


If,  (itio 


.r,n.  'Uio 

•,'f-.">,  !M0 

Id.  fill! 


I- 1.  -Jill 


l,.-(V  t:u 


I,  ■.III,  I -It 

lll.tili!) 


?iK  •.'."li   -J  10 


I.  »-JI    h.VJ 


•.i^ii.  i:ii 


I,  l(M,:iti" 


1.  5!)(),  -^40 


!Mi:i.  .-ii: 


I,  i!i:i,  :<iii 


ii.  ori4, 0.50 

mf'O,  VXi 
'XiK,  .VX) 

•Jii  I.  :i:i.-. 


*n.  •:23:  itm 


:.ii:,  1- 


■jCiii,  >ii(; 

i:i'j  ■>:( 

' 

It.  11 10 

>-r<.  o:i<i                     : 

^     i 

!Mi.  (ino 

ti.  uoo 
■J.  000 

.«!i.">.  :<'x\  I 

Kin.  p",'!»  I 

:t:i.  ;i'.i.-i  I 
rj,  o:m 


04.'.,  1 07 


(i)(i  » :(,  o-jH.  :w5 


DaiiinK'* 


VJ.  00-J , ;  I'm:  crtVrt 


liKi.  -i'tf 
•J.-i.  071 
."pit.  I-Jl) 


I 


:t.'>.  iiiiH 


ill\r'.  44(1 


140.  0-i!> 


J4I.  ^.•,l 


:(.  Id!).  .VJJ 


•|-tl,  7.14 


•ji.i,  (cr. 


17, 4.17,  :m 


,»'i 


mm 


ANNKX    C. KEIOHT    OF    T»K    HOARD    OF    TKAIJK 


845 


*;!. -.'IIV  :i:io 


Tahi.k  No,  "i. — Shoiciiig  the  nmiU  of  the  corrcvtioim  and  re-approiniatioiig,  c)'r — (.:«»iitiimeil. 
SrwMAUV  (N'n.  H.) — CniiscrM  (correrteil  and  rn-nrranspd  aw  per  llojutrt.) 


Clitiiiis. 


Alaliama: 

Cla^s  A  («) I  #1,  Hit,  171 


AllowaiiciM. 
Allinvrd  at — 


('  

I»  (.0  ('■). 
K.  V 


■I 


i.:i(i(i,fiio »l(il^,.^:w 

a,  H47,  ;»;n /-j.  (hh,  int; 


:J7ri,  u:» 

1  Ui,  (id'.l 


ChiKS  K.  V  «■) 

('liickaninuKii : 
("lasH  15 


!t,"i.  C.Vi 


#(i,  ,-.l;i,  no 


'.i,"i.  ti.'),i 


Mi>riilii.(in('1ii(liiigl'lai'i'iii'i'anil  Tixuiiv :) 

( 'lans  A   I  I K4,  li  1- 

11  (b)  (.•) 1  f,V..  7'.Mi 

( ■ t  -J,  j:),"..  7i>;i 

I ) I  70,  :i7!> 

K.  K 7!t,  7.%fi 


..i;;ia  : 
CiaHN  I'. 
(' 


i;.  1" 


V;,»hvillr  ; 

Class  I) 


3,  (i-Jl),  MOJ 


■jo:t  i!i,'.  

l,Ml.  7h1  

:to.  (M)o  

:tf^:t,  !(7ii 


i:if;,  O'ji 
17,  .-.■.0 


--tl.  I  IK 


lliv.  ,'.ii4 
I. II,  7(l!t 

I  77ti.  in,')  ; 

•II,  ,-.70  ' 
l>l,:i.-rfl 


111.-.,  I'.l-I 
ll.^i,  H;t7 


i'J,  •JtJ7,  ti7« 


-(I,  118 


(ill.  ,-i;)7 


li-J,  ill  Id 


•J.  ii:i,'i,  :>i'-* 

j,-ii,o;ti 
t;->.  (ion 


IMriliM'iioii  : 
ClaxN  It. 


<tM  iiaiiiliiali  : 
fl.i.-s  A  (/) 

r. 


II  ... 
!■:.  !•■ 

Class  K,  !•' 


i'i)llaluiKNi>o  : 
Class  A 


I)  .    . 

IV  K, 


If.  lO,-) 
l.lilJO 


*  :i:i."i 


li:.  111! 
1,-JIO 

17 

71 1| 

(/) 

7!C.,  ()!,■)     , ./l.ni.Hi-l 

101,  HI,-   JM.  ti;io 

n.'i,!i;ri /!i!»,,V'j 


!•;<,  100 
•J-,',  ;'>00 


•jio,  ;mo 

!'07,74l 
110.  .'iOO 

:t(i,  H7,-. 


(i,  l,-i7,  WIf 
III,  liO.'i 


.■)7!l,  !l.^>f! 

17.  r.x  :.>-t 


:i7,  ,"(00 


4.000 

i,:t:if, -iMi 
1,  OM 

1,  ,"(00 

i:i:i,  iiu 
1(11,  lU 

,"lH.  ,'.00 

111,  lf<7 

HI7  ti7."> 

7,  !I7'I,  o."i( 


"I'  'I'liis  liiis  ln'cii  ii'diuM  d  liy  ^\  illidrawal  Iimim  rlaiiii  nl'  tin'  Altaiiialia  ii4  the  ,smii  id' 
'i  Tills  lias  liccii  ifdiii'i'd  liy  wlllidiawal  licdii  claim  ciT  ll.i'    ivcin  iil   llii^  sum  of 
i)   Tliis  lias  lici'ii  riiliiccd  li\  witlidiawal  IViim  claim  at  lli.'  .\vmi  iil'  tin-  sum  of 
"'I  Tills  has  lii'i'ii  I'cdiiri  il  !>  »  illidiawal  Tniiii  claim  nj'  ||i<'  Kiiima-laiic  nl   the  sum  nT 
I'  I   Tlii.s  lias  liccii  I'cdiK'cd  by  willidi'a\tul  Irum  claim  mT  tlic  Kiiiiiia  ,)aiic  nT  tin-  siiiii  iiT 
'.'I  This  has  111  I'll  reduced  by  withdrawal   Tluiii  claim  of  Tour  oT  the  vessels  detained 

liN  the  Slieiiamliiali 

ly)  This  has  liceii  reduced  by  witlidfawnl  Tioiii  allowuiii  e  tor  tlm  vcusids  detiiiiU'd  by 

the  Sheiiaiidoali.    

'ii  This  has  been  reduced  by  witliilrawal  t'riiiii  claim  15  Isy  Ames  (see  p,  :i:i(i) 

'11  [Tills  has  been  riMluctMl  l>y  withdrawal  I'mm  alhiwaii  e  t'lir  Hi'tsy  .Vmc't 

iti  Tliis  has  been  iidticed  by  withdrawal  Triiin   ■laim  id  Texiuia  (see  p.  iWI) 

I'l  Tliis  liaH  been  reduced  liv  w  ithdniwal  truiii  'lie  aevcal  alliiwaiiccH  an  mentioned 

(at  p.  :i:0) : 

SlmwinK  in  all  dodiictioiiH  I'roin — 

Claims 

AlluwauueH 

\>ni  This  lidH     on   Hie  other  hand,    been   liicrt-iined   li\   allowance    Tor   Hie   pHiinetlo, 
(Ncep.  :»;ui)       '. 


.«i.-.,  •(,-.0 

l-J,  Olio 

■J,'i,  IHHI 
I.  IIIMI 
,".,  1 101 1 

•jiy,  !H«> 


,-.,  .'>40 
400 

301)  .\M 


4.  H7.') 
:il,)i.Vt 


Ti,  VM 


7,000 


:54« 


^  t:5 


■-'-•* 


ri  S, 


^2J?^ 


IJ       s  s 


«   -  -S   s  t  i 

s  -e  c  ■~  ■-  r- 

;  a  S  -S  -  2 

5«  w  ~  s  s 

o  -^  ~  "  ~ 

^  £  -    ''I  i  =. 


i.  s*  ~     ::- 


•*■     ^     '^ 


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I 


1 


'■i''-n,'T]T^ 


i(\' 


ANNEX  D.-FURTHER  NOTK  ON  THE  CLAIMS  FRESENTKI)  |!V 
THE  GOVERNMENT  OF  THE  UNITED  STATES  FOR  EXI'KNDI- 
TllKE  ALEE(JEl)  TO  HAVE  BEEN  INCURRED  IN  THE  I'UKSIilT 
AND  CAPTl  UK  OF  CONFEDEKATE  (IIILISERS. 


KFFOIITS   MAIH:   TO   CAlTlIlfK   CONI- KDKItATK  CliUlSKKS. 


AlwMJAMA. 


The  United  Stiites  in  thoir  Counter  Case,  while  (UMiyinj;-  the  pertiiit'iuc 
of  the  point  to  the  (jnestions  at  issue,  reiterate  the  assertion  that  thcv 
"  made  great  ell'orts  and  incurred  great  expense^  in  their  ellorts  to  eiip 
turc  the  Ahibanui.'* 

It  is  not  proposetl  in  this  pai)er  to  do  more  than  nnike  a  passing  reloi 
ence  to  the  cases  wliieh  the  British  Government  consiiU'rs  point  to  an 
ojjposite  conclusion,  and  which  have  been  fully  discussed  in  its  Case 
and  Counter  Case: 

(a.)  The  Tuscarora's  rcmissiu^ss  in  not  following  up  the  Alabama  aftci 
getting  away  from  Liveri)ool. 

(/>,)  The  escape  of  the  Alabama  from  the  San  Jacinto  at  Martini(iiit'. 
on  IGth  Xovember,  1A(\2. 

[e.)  Commodore  Bell's  remissness  in  not  capturing  her  after  she  sunk 
the  llatteras  ott"  Galveston. 

((/.)  Admiral  Wilkes's  interference  with  the  Secretary  of  the  ^'avv■s 
orders  to  the  Vanderbilt;  the  failure  of  the  captain  of  that  ship  to  (;ain 
out  the  orders  im])licitly  when  allowed  to  proceed  in  their  execution, 
and  his  final  abandonment  of  the  [)ursuit  at  the  Cape  of  Good  Jlopi'. 

The  (piestion  now  to  be  <!onsidered  is,  did  the  United  States  (Jovoiii- 
ment,  with  the  means  at  its  dis[)osal,  use ''due  diligence"  in  its  etlorts 
to  arrest  the  career  of  the  Alabama  ' 

Mr.  Welles,  the  Secretary  of  the  United  States  Navy,  in  his  liist 
Report  to  Congress  after  the  commissioning  of  the  Alabama,  of  1st  Dc 
cember,  isiii*,  stated  that  liis  department  iiad  ''dispatched  vessels  in 
etfe.'t  the  capture  of  the  Alabama,  and  tiicre  is  now  (piite  a  lleet  on  tii»' 
ocean  engaged  in  pursuing  her."    (Tage  lit.) 

Now,  on  referring  to  tlie  claims  put  I'.irth  a.uainsf  (li'oat  r.ritaiu.  i:i 
Volume  \'I1  of  the  AppiMidiecs  to  tiic  I'liileil  wStates  Case,  and  coin 
paring  tlie  several  (iates,  wi'  find  lliis  •' lleet  ^  is  stated  to  have  con 
sisted  of — 

1.  The  Tiisearoia,  a  suitable  ship  lor  the  scrxiee,  which  was  oidcn'il 
on  tlie^ath  September,  I.SUL',  (o  go  lo  the  West  Indies  in  searcli  ot  tin' 
Alabama  and  Morida.'" 


'  F<il'  (lie  \;ili(»iis  itnlt'I.s  jrivcil  to  tllcsc  vcssi'ls,  ;uitl  iiliilili'tl  to  ill  tlu'  (mhU'si  oI  llu'' 
Auiwx,  stM!  tlu;  S_viio|if<i,s  ol'  OnlcrH  nivcn  in  tlic  Ainiciulix  to  tlu'  L;iis('  ot"  tin-  I  n'li''' 
Siati'H,  vt>l.  vii,  «ti»]i(i.-ito  Ut  jki^i'  T-iO. 


ANN'KX     l>, KXPKNSKS    OK    ITRSt'IT, 


,ii}\ 


sslnj;  rolV'i' 


iihama  afti'r 

Martiiiitiiit'. 

or  she  sunk 

the  Navy's 


ll.  Ol     I  SI 
ll    VCSSt' 


As  Mr.  Welles,  in  tlie  ssuiie  I'eport  to  C«ni}j;ress,  stated  that "  the  Tiis- 
carora  is  now  in  ])iii'siiit  of  this  pirate,'' (Alabama,)  it  may  be  taken 
that  these  or«lers  wi're  sent  to  her  about  the  time  that  the  Chippewsi 
was  ordered  to  relieve  her  at  Aljjferiras  in  watehinj^  the  Sumter.  The 
Chii>pewa  was  at  Cadiz  early  in  November,  1(S<»2.  It  may  therefore  be 
assumed  that  she  lelieved  tlu^  Tusearora  about  thur  tinu' ;  but,  as  the 
Tuscarora  was,  in  the  months  of  Novmilu'r  and  Decendn'r,  cruisinjj 
ortMadeira;  was  at  (libraltar  on  the  olst  Decnnlier,  18(»li;  at  Cadi/- 
1)11 
ro 


the  ITfli  .lanuary,  lStl.{;  subsequently  paid  t".o,  if  not  three,  visits 
Madeira  ;  was  a;^°ain  at  (iibraltar  on  the  ITtli  rdar(;h,'  and  completed 
licr  cruisi',  it  is  presumed  at  Miune  port  in  the  Cnitetl  States,  on  the  l.'Jth 
April,  (See  Synopsis  of  Orders,)  she  could  not  possibly  have  put  the 
lU'dcrs  into  execution.  The  nauu'  of  the  Tuscarora  does  m)t  appear  in 
tlic  returns  of  the  I'uited  States  sliips-of-war  that  visited  tlu'  I'.ritish 
Islands  in  the  West  Indies  <lurin,".  this  period.  This  su;;<;«'sted  a  mon- 
careful  and  complete  investi^iation  inl.)  her  case,  which  has  r«'sidted  in 
provinj;'  con«'lusively  that,  in  spite  of  the  intentions  of  the  Navy  Depart- 
iiiciit,  she  did  not  on  or  after  tlu^  ."dh  September,  1S«»1.',  "  yo  to  the  West 
iidies  tor  the  Alabama  and  IMorida,"  and  that  therefore  she  was  not, 
III  the  1st  l)e(!ember,  isdii,  the  <late  oi'  Mr.  Welles's  lleport,  in  pursuit 


II 

lit'  tin 


.  Alabama. 

L'.  The  Vaudei'bilt,  a  suitable  vi'ssel  when  supplies  of  coal  were  pro- 
curable, then  ernisiiif;  in  the  track  of  vessels  bound  to  and  from  iOurope  ; 
of  her  proceedin;>s  on  this  (M'uis(>  uothiiij;'  further  is  kmnvn.- 

•'».  The  San  .huMiito,  a  suitable  vessel,  then  iii  tln^  West  Indies;  the 
Alabama  had  on  the  previous  IStli  Noveiiiber  escaped  from  her  at  3Iar- 
tinique. 

4.  The  Mohican,  a  suitable  vessel ;  shecMiuld  not  have  left  the  I'liited 
States  on  the  "  bellijicrent"  mission  of  capturinj;' the  Alabama,  as  on 
tlio  1  Ith  November,  1S(>2,  when  api)lyiuy  tor  coals  at  liermuda,  to  ena- 
ble him  to  }»()  to  tlu'  eastward,  her  commander, Captain  (llisson,  assured 
lioveriKU'  Ord  that  "  he  was  n<»t  directly  enj;aj;ed  in  any  belligerent 
itpcrations  ajiainst  the  Confe<lerat«'  States,  but  was  proceedinj;'  to  a  for- 
I'lfiii  station  in  the  i)erformance  of  an  ordinary  duly."  (Appendix  to 
the  Dritish  Case,  vol.  v,  p.  32.) 

•"».  The  J)acotah,  a  suitable  vess«'l  :  she  had  ceased  her  ]»ursuit  by 
17th  November,  (see  Synopsis  of  Orders,)  althouj;h  Mr.  Welh's  named 
liiT  as  being  still  in  pursuit. 


'  For  icconl  of  visits  to  (JiliijiUur,  sco  Aiipt-ndix  to  !?iitisli  Case,  vol.  v,  i».  'iii'.l.  Tin' 
liatcs  of  tlu'  vifsits  (if  tlicso  and  iilhi'i'  scssrls  to  luit'ij;ii  ports,  iio-iitioni-d  tiii'on;;lioiit 
tlii.s  Annex,  arc  rccunlcd  in  iftnriis  iVoni  i'>iiii>li  Consuls.  Mail  Aj^cnts.  Ac.  wliicli  can 
I"'  iMcicliiccd  for  I  lie  satisfaction  of  t  lp'  Ai  liit  r.iluis,  if  so  disircd. 

■ll  is  more  tlian  prolialdc,  iVcnn  imiicalions  met  with  in  liacinii  out  tlic  i)roc('cdiii;j;s 
"I  iilliiT  I'nitcd  Stales  cniiseis.  I  lial ,  had  lime  iiermilled.  jiiiod  reasons  would  have 
I'i'cii  iliseovered  for  sunj^cst  inn  alialemenls  on  accDunl  of  lliis  eiiiise,  the  claim  for 
'•Ma(hi,>at  the  rate  of  neai  ly  .■r'I,.'!UO  a  day.  Indeed, il  mi^hl  he  cr|nall.\' ilesirahle  to 
iiiilcasor  to  trace  out,  the  proceediu^is  of  other  vessels,  w  hich  an;  wholly  unknown, 
i'Xcc|ii  so  tar  as  staled  in  the  synopsis  of  orders,  such  as  the  .\u;;usla,  'l'iconilero;;a  tVc; 
'lie  claiais  on  their  account  were  iiecess.-irily  tnated.  in  the  foimer  ri'poit,  as  adinissi- 
lile  ill  the  hypolhelieal  sense  there  explained,  liiU  further  li^ht  iiiiuht  diseovei',  as  in 
-1)  uii.iiy  other  cases,  errois  which  would  Justify  alialeiueiiH. 


I; 


i  ■ 


■\r}2 


lUnriSII    AKUI  MKNT. 


«h  •     I 


a.  Oinviinl. 
7.  Hiihiiu'. 
H.  I  no. 
1>.  St.  liOiiis. 


^  Sjiiliiiji-vi'ssels,  oltvioiisly  iixrU'ss  in  imrsiiiii;;  tlic 
Alahaiiiii,  and  wliosi^  tMiiployincnt  on  nu('Ii  s(>rvio> 
was  4on<U>inn('<l  by  thr  United  JStatt's  Minihtors 
abroad,  <.//.,  I».v  Mr.  Dayton  (i|not<'d  in  the  Itepon 
of  A(bniralty  (,'oniniitt<'(>,  A|>|>4>ndi\  to  tlio  liritisli 
Caso,  vol.  vii,  p.  r>.S,)  by  3Ir.  Adatns  in  his  di.spiitch ' 
to  Mr.  St'wai'd,  lUtli  .May,  l.S«lt,  after  a  conversation 
witli  Prince  do  .loinvlMe  on  the  inutility  of  I'nittil 
States  sailinjf  sidps  in  ICnropean  waters,  «S:e.  Sim. 
ihir  opinions  were  expressed  by  the  captains  of  tin; 
(JonsteUation,  St.  liouis,  «S:e. 
Adnnral  Wilkes's  tlyin/jf  sc|nadron  <*oidd  not,  from  a  previous  inentioti 

made  of  its  special  duties  in  the  same  Report,  p.  vi,  have  been  inirltuicil 

in  Mr.  Welles's  "rieet." 

It  is  thus  seen  that,  exe«*ptin}j:  the  Tust-arora,  Mohican,  I)aeotali,aiiti 

the  useless  sailinj;  ships,  Mr.  Welles's  "  tieet"  is  reduced  to  two  vessels. 

although  at  the  time  he  could  boast  of  having  iu«*reased  the  Unittd 

States  Navy  to  427  vessels,  and  L'.S,(MM)  men  ! 
Turniii};'  now  to  the  ships  in  pursuit  when  Mr.  Welles  made  his  iioxt 

Report  to  Conjiress,  viz,  on  the  7th  DecendK'r,  l.S(»;j,  the  Alabama  tlu'ii 

being  in  the  lu^ghtof  her  car<'er,  the  Synopsis  of  Orders  gives  the  f(»l 

lowing  ships  as  so  engage«l : 

1.  A'anderbilt;  but  on  the  L*7th  t»f  October  she  had  abaiidoued  the 
j)ursuit,'  and  on  the  7th  Decendier  was  making  her  wav  back  to  tlic 
United  States. 

2.  jMohican  ;  this  shii>,  whicli,  as  will  be  siibse<|uently  shown,  com 
menced  her  pursuit  of  the  Alabama  on  the  iMh  -May,  l.Sd.'t,  from  tin- 
Caite  de  V«*rds,  also,  on  the  1 1th  J)ecembei-,  iSlj.},  abandoned  the  pni 
suit  at  the  Cape  of  (lood  Hope,  an«l  turned  her  head  westward.  Slic 
was  at  St.  Helena  on  the  L'lMh  December, on  her  way  l»ack  to  the  IJiiitetl 
States.'  Had  she  lemained  at  or  near  the  Cape,  or  the  Mauritius,  oi 
gone  to  llourbon  (where  she  could  have  coaled)  for  a  few  weeks,  siic 
would  have  learnt  that  her  chase  had  gone  to  the  Kast  Indies.  Insleatl. 
however,  of  so  doing,  her  t'aptain  retraced  his  st«'ps  homeward,  in  s|»ir«' 
oi'  communit-ations  lie  ha<l  received  when  at  Cape  Town,  and  wliiih 
(railed  fm'th  these  observations  from  the  lTnit«'(l  States  consul  at  tin- 
^Mauritius  in  a  dispatch  to  Mr.  Seward  of  the  ."ith  February,  1S(J4:  "The 
narrritive  of  these  thinj-s  atfords  another  illustiation  of  the  necessity  oi 


a  man-of-war  in  these  waters. 


When  the  Moliiciiii 


was  at  (Jai)e  Town,  especially  as  the  facts  coiu^erning  the  Sea  r)ri(l('liii'l 
been  communicatetl  by  me  to  tlu'  consul  there,  and  Avere  b}  him  laid 
before  the  captain  of  the  Mohican,  it  seems  unaccountable  that  that 
vessel  did  not  extend  its  cruise  to  ."NFadagascar  and  ^[auritius.  It  is  tn 
be  ho[)ed  that  Captain  Glisson  had  sullicient  to  justify  his  comliut  in 

'Tlio  folliiwin;;  is  an  <'xh'a('t  from  Mi'.  Adams's  (1is]tat(Ii : 

''Till'  rriiicc  (If  .loinvillc.  uIik  i  allcil  on  iiic  tlir  otliurday  widia  It'ttt-r  to  you,  wliii'i 
J  had  tho  honor  lo  forwaid  hy  tlic  last  stramci',  maih-  soiiif  rcmaiKs  on  tlin  rlii'it  "I 
thf  incscnct' oC  onr  sailin;;;-shii)s  in  l^mopfaii  liarhors  in  a  pcrtt'ctly  IVitMidly  .spirit, 
wliich  wen;  not  withoni  ijicir  \V(Mj;;hl  in  my  mind.  I  ha\r  a  IV'ar  that  these  ve.sN(l> 
iMitail  a  heavy  hnrch'n  i>i"  nseh'ss  ex|>ense,  and  retain  in  ntter  inactivity  a  eonsidcra'ili- 
nnniher  of  tlie  best  etass  of  oiif  nsel'nl  seamen.  It.  wonld  bo  qnitc  as  well  for  rih' 
lonntry  if  tlu'V  were  <Mdire]y  withtirawii.  One  steamer  like  tlie  Kearsarj^e  Ikih  iiieit' 
inllnenee  n))on  the  opinion  of  nanlical  men  than  all  the  oh.soleto  fri<;ates  renininiiiL;  m 
the,  woild  wonld,  i)nt  toijether.  'I'hree  w  four  snidi,  properly  distrihnted,  with  U'""] 
olliceis,  wonld  mateiially  idn-ek  tiie  lendenev  to  servo  on  hoard  of  dnhious  rebel  uliijis 
Dip.  Cor.,  !.-<(!•«,  Part  i,  (i.  T:!-,». 

-See  Aii])endix  to  Hritish  Case.  vol.  vii.  p.  70 


'Ibid. 


vo 


]).  'i:{4. 


ANNKX    n. KXI'KN.SKS    (t|'    IMK^l  IT. 


353 


tin:. in;;  biM'k.     Still,  I  f.m  but   iiopo  tlmt  some  other  xo.s.m'I  from  o;ir 
now  vt'iy  lar;;('  navy  may  very  .si>oii  appear  in  the  Iiiiliaii  Ocean."' 
:;.  (Miwaril.     i 

I.  Ino.  [The  sailing  s]ii|>s  alieatly  disposcMl  of. 

,"..  St.   liouis.  \ 

li.  liliode  Island,  stationed  oil  tiie  liahamas.  and,  like  the  De  Suto, 
|i< rtiiiinin;;  precisely  the  same  duties  is  Admiral  Wilkes's  llyin;;'  s(|uad- 
1(111,  I, see  post,  p.  .SS.) 

7.  l)e  Soto;  the  same  oil'  the  Havana.  (Ai'i>endi\  to  iJritish  Case, 
vol.  vli,  p.  li.) 

s.  Wyoming.  This  ship,  with  the  sailin<isloop.Ianu'sto\vn,  represented 
till'  I'nited  States  interests  in  the  lO.ist  Indies,  Chiiia,  and  .lapan,  and 
hiul.  of  eours(;,  the  <udinary  duties  of  this  extensive  station  to  carry  on  ; 
>ht'  was, at  the  very  time  Mr.  Welles  was  makiiifj  tiiis  Jteport,  well  i)laee(l 
to  intercept  the  Alabama,  boinjj  near  the  Straits  »)f  Sunda  when  tlu' lat- 
ter passed  throujiii  thorn.  The  Wyominji'.N  further  proceedinj^s  will  be 
siiltseqnently  dealt  with. 

It  is  thus  seen  that,  within  a  very  few  days  of  the  date  of  Mr.  Welles's 
Kt'port,  the  ('hase,  pursuit,  or  search  for  the  Alabama  was  practically 
reduced  to  one  elhcieiit  ship,  the  Wyomiii<>',  and  she,  as  will  be  elsewhere 
shown,  virtually,  on  the  1.3th  of  the  followinj;  February,  }j:ave  up  the 
imrsuit,  or  did  what,  as  far  as  any  claim  on  account  of  the  Alabama  is 
loiicerned,  amounted  to  an  abandonment.  Findinjf  the  Confederate  had 
|irobal)Iy  left  the  limits  of  his  station,  lu'r  commander  conceived  the 
orders  he  was  then  acting  under  did  nor  Justify  him  in  followinj;  the  Ala- 
liaiiia  beyontl  such  limits.  And  yet,  at  this  time,  Mr.  Welles  could 
justly  make  the  yet  prouder  boast  that  the  I'nited  States  Xavy  consisted 
of  iss  vessels  aTul  i{i,0(M)  men,  exclusive  of  otlicersl 

From  this  period  to  the  date  of  the  Alaltania's  i>einj;  sunk,  the  chase, 
inustiit,  or  search  was  couHiumI  to — 

1.  The  Sacramento,  a  suitable  vessel,  ordered,  on  •'  the  isth  January, 
1S((4,  to  cruise  to  the  Cape  de  Verds,  llrazil,  Cai»e  of  (lood  IIoi)e,  ami 
theaeo  to  the  eastward,  or  to  Kuroi>e,  accordin:^  to  news  of  the  Ala- 
Laina." 

She  was  at  Table  Day  from  the  20th  April  to  tlie  ."»th  May.-  Learning- 
there,  doubtless,  that  the  Alabama  had  saile<lon  the  previous  March  for 
u  French  port,  she  followed  her  to  Europe,  and  was  at  Lisbon  on  the 
-!>tli  of  June;  it  has  not  yet  been  ascertained  on  what  day  she  arrived 
there,  but  tifty-six  days  would  seem  to  have  been  a  very  long  passage 
lor  a  powerful  full-rigged  ship  like  the  Sacramento,  with  a  speed  under 
stci\in  of  12.^  knots,  to  have  made  in  time  of  war  and  iu  the  actual  pur- 
suit of  an  enemy.  She  may,  therefore,  have  arrived  at  Lisbon  some  time 
hetore  the  lit)th  June,  or  have  touched  at  some  other  European  i)ort. 
Although  probably  in  want  of  stores  and  supi)lies,  she  does  not  a|)pear 
t(i  have  called  at  Cadiz,  w  hich  was  then  the  depot  for  the  United  States 
ships. 

-.  The  Kearsarge,  from  the  time  she  left  Flushing  till  siie  sunk  the 
Alabama. 

■  ).  The  Wachusett,  a  suitable  vessel,  and  ordered  apparently  to  limits 
judiciously  chosen  to  inti->''i''^  the  Alabama  on  her  return  westward, 
i^he  was,  however,  so  fr((pu;i!r.y  to  be  found  during  this  period  in  the 
ports  of  Brazil,  that  she  c  j'fii!  stave  spent  but  little  of  her  time  in  cruis- 
ing near  the  equator.  Th  AU  bama,  on  the  2d  Ma3%  1804,  (having  for 
tt'ii  days  previously  been  on  tlie  track  of  the  homeward-bound  Facitic 


I    •:>< 


23  0 


'Appendix  to  Cas«)  of  the  United  Stiiti's,  vol.  i.,  p.  250. 
*  Appendix  to  British  Ca8o,  vol.  v,  j).  'i'iH. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


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S  IIIIM 

IIM 


2.2 


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2.0 


1.8 


1.25 

1.4 

1.6 

-m 6"     — 

► 

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Scioices 
Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  873-4503 


A^ 


&? 


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1- ' 


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fe% 


WWmr^^^r'^ 


354 


BRITISH   ARGUMENT. 


■';:-i 


ships,)  was,  according  to  Admiral  Semrnes,  at  "  our  old  toll-gate  at  the 
crossing  of  the  30^  parallel,  where,  as  our  reader  will  recollect,  we 
halted  on  our  outward  passage  and  vised  the  passports  of  so  many  trav- 
elers. The  poor  old  Alabama  was  not  now  what  she  had  been  then. 
Her  commander,  like  herself,  was  well-nigh  worn  down."  ("Adventures 
Afloat,"  p.  749.)  Where  was  the  Wachusett  about  this  time  ?  At  Bahia 
on  the  31st  March,  at  Peruambnco  on  the  27th  April,  at  Bahia  again  on 
the  13th  May  and  on  the  11th  June.  It  would  seem  from  the  translation 
of  a  dispatch  from  Mr.  Webb  to  the  Brazilian  Minister  for  Foreign  Aliairs 
of  the  IGth  of  October,  1804,  given  at  page  142  of  the  first  volume  to 
the  Appendix  of  the  British  Case,  that  her  commander  was  then  more 
concerned  in  opposing  the  wishes  of  Mr.  Webb  and  the  United  States 
Consul  at  Bahia  than  in  following  up  the  "  rebel"  cruisers.  The  claim 
on  this  ship's  account  has  been  considered  admissible  for  the  Arbitration, 
(in  the  sense  explained  in  the  Admiralty  Report ;)  but  it  will  be  here- 
after shown  that  subsequent  investigation  warrants  the  suggestion  that 
a  considerable  abatement  should  be  made  from  it. 

4.  The  Niagara,  a  suitable  vessel ;  but  the  postscript  to  the  Admiralty 
Report  will  have  shown  that  this  ship  was  sent  to  European  water:>  oa 
account  of  the  ironclads  and  corvettes  which  were  being  built  in  Fraiioe 
for  the  Confederates.' 

It  is  therefore  clearly  demonstrated  that,  when  the  Alabama  Mas 
sunk,  the  United  States  cruisers  in  actual  search  of  her  (including  tbc 
Wachusett  and  also  the  Kearsarge  for  nine  days)  were  only  three,  out 
of  a  navy  which  by  this  time  must  have  numbered  over  GOO  vessels. 


FLORIDA. 


m->-^ 


Pursuing  the  same  course  of  inquiry,  and  only  incidentally  alhuling 
to  the  acts  of  remissness  on  the  part  of  United  States  cruisers  in 
regard  to  the  Florida,  viz  :  allowing  her  to  get  through  the  blockading 
squadron  into  Mobile ;  allowing  her  again  to  pass  the  blockading  squad- 
ron, and  get  out  again  ;  it  will  be  found  that,  at  the  date  of  Mr.  Welles's 
Report  to  Congress  of  1862,  no  cruisers  were  in  pursuit  of  that  Con- 
federate vessel,  then  blockaded  in  Mobile  ;  nor,  indeed,  does  the  United 
States  Counter  Case  contend  that  the  pursuit  in  her  case  was  effective. 
It  simply  states  "  that  it  is  scarcely  necessary  to  say  that  the  United 
States  deny  the  allegations  regarding  the  supposed  negligence  of  their 
Navy." 

The  Tuscarora,  as  already  shown  above,  was  never  in  the  West  Indies 
in  pursuit  of  the  Alabama  or  Florida,  although  she  was  ordered  there 
for  the  purpose. 

On  her  escape  from  Mobile,  the  R.  R.  Cuyler — a  suitable  vessel— was 
sent  by  Admiral  Farragut  in  pursuit  of  the  Florida,  and  continued  to 
cruise  for  seventeen  d.ays.  It  is  not  known  that  there  is  any  official 
account  of  her  cruise  published  ;  but  a  letter,^  purporting  to  be  from  au 
officer  on  board,  and  dated  21st  January,  1803,  "  oif  east  coast  of  Yu- 
catan," after  mentioning  that  they  had  pushed  on  to  Cape  Antonio,  hut 
had  lost  sight  of  the  chase,  proceeds : 

"  Had  the  Oneida  accompanied  us,  as  she  was  ordered  to 
chance  would  have  been  double  what  it  was.         *        *        * 

"There  were  seven  vessels  of  us  off  the  port,  (Mobile.)  We  had  fifteen 
hours'  warning,  and  her  (the  Oreto)  only  way  out  was  through  the  uiaiu 
ship-channel,  which,  at  the  bar,  is  less  than  a  mile  wide.  *         * 

'  Appeudix  tu  British  Case,  vol.  vii,  p.  110.  <•  » 

*  Putuam's  Record  of  the  Rebellion,  vol.  vi,  p.  398. 


do,  our 


ANNEX  D. EXPENSES  OF  PURSUIT. 


355 


"  Everything  was  done  to  incre.ase  our  speed,  but  the  utmost  was  12^ 
linots.    1  have  seen  the  ship  go  14. 

"  The  prime  cause  of  her  escape  was  neglect  to  prep.are  for  her ;  and 
remembering  Commander  Preble's  case,  1  think  the  Department  will 
soon  decide  where  the  fault  lies." 

At  the  date  of  Mr.  Welles's  next  Ecport  of  Congress,  on  the  7th  De- 
cember, 18G3,  there  was  not  a  single  vessel  in  special  pursuit  of  the 
Florida,  nor  had  there  been  any  sent  during  the  previous  twelve  months, 
except  those  already  named. 

From  this  date  to  that  of  the  Florida's  seizure  in  the  Port  of  Bahia 
by  tbe  Wachusett,  the  following  were  sent  in  pursuit  of  her  : 

1.  The  Ticonderoga — a  suitable  vessel — which  appears  to  have  been 
withdrawn  from  the  protection  of  the  Fisheries,  on  tidings  that  the 
Florida  had  re-appeared  off  Bermuda,  in  June,  18C4.  She  touched  at 
Barbadoes  on  the  8th  August,'  but  nothing  further  is  known  of  her 
proceedings. 

2.  The  Pontoosuc — a  suitable  vessel.  She  appears  to  have  been  the 
only  vessel  of  those  out  on  the  12th  and  13th  August,  18G4,  in  pursuit 
of  the  Tallahassee,  whose  orders  embraced  also  the  Florida. 

3.  The  Niagara — a  suitable  vessel — but,  as  already  shown  above,  she 
was  not  sent  in  pursuit  of  the  Florida  ;  further  references  to  the  same 
eft'ect  will  be  given  below. 

It  is  thus  seen,  if  no  "  grciit  efforts  "  were  made  and  no  "  fleet"  was 
dispjitched  to  capture  the  Alabama,  still  less  were  any  serious  efforts 
made  to  capture  the  Florida ;  and  this  assertion  is  advanced  with  a  full 
recollection  of  the  intermittent  and  fitful  attempts  made  by  the  Kear- 
sarge  to  blockade  her  in,  and  capture  her  after  leaving,  Brest,  in  the 
performance  of  the  ordinary  duties  incidental  to  a  state  of  war,  and  when, 
as  shown  by  the  synopsis  and  her  actual  proceedings,  the  Kearsarge 
was  not  detailed  for  the  actual  purs^nt  of  any  of  the  Confederate  ships 
iu  Class  I  of  the  Admiralty  lieport. 

None  of  the  sailing-vessels  are  stated  to  have  been  sent  expressly  in 
pursuit  of  the  Florida.  Her  escape  from  the  Saint  Louis  at  Madeira  on 
the  29th  February,  1864,  is,  however,  a  further  apt  illustration,  if  fur- 
ther proof  could  possibly  be  needed,  of  the  utter  unfitness  of  the  sailing 
ships  for  the  service  of  following  up  these  vessels.  "  I  have  little  hopes 
(said  Captain  Preble)  of  bringing  her  to  action  with  my  canvas  wings, 
though  I  shall  follow  her  to  sea,  if  practicable,  and  try,"  with  what  re- 
sult might  easily  have  been  divined.'^ 


GEORGIA. 

Tlie  United  States,  iu  their  Counter  Case,  sec.  vii,  par.  5,  state  that, 
"when  Her  Majesty's  Government  made  the  statement  that  no  serious 
endeavor  to  intercept  or  capture  the  Georgia  appears  to  have  been  made 
on  the  part  of  the  United  States,  it  was  mistaken."  No  trace,  however,  of 
any  such  endeavor  appears  in  the  synopsis  of  the  orders  to  the  United 
States  cruisers,  where  she  is  not  even  named  ;  and  the  only  ship  known 
to  have  gone  in  pursuit  of  her  was  the  Niagara,  which  captured  her 
when  it  vaa  notorious  she  had  been  dismantled  and  sold,  and  was  char- 
tered as  a  merchant-ship  to  the  Portuguese  Government. 

There  is  no  act  of  special  remissness  on  the  part  of  any  United  States 
cruisers  averred  in  reference  to  the  Georgia.  It  would  seem,  however, 
from  the  translation  of  a  letter  addressed  on  the  2l8t  May,  18G3,  to  Mr. 

'Appendix  to  British  Case,  vol.  v,  p.  220. 

^  Diplomatic  Correspondence,  1864-'65,  Part  iv,  p.  297. 


.;;  '<^ 


fei.i.f:, 


mm^ 


356 


BRITISH    ARGUMENT. 


■VYebb,  the  United  States  minister  at  Eio,  by  a  Mr.  Grebert,  an  "intoUi- 
gent  Gernian  gentlemen,"'  that  the  Mohican  had  been  in  sight  of  the 
Georgia  oft"  St.  A'incent,  but  it  would  not  appear  that  she  followed  her 
up.  Mr.  Grebert  stated,  "  A\'e  were  informed  at  Saint  A'incent,  Cape  de 
A^erds,  that  a  few  days  before  our  arrival,  a  steamer  had  appeared  in 
sight  of  the  port,  but  had  immediately  disappeared.  It  is  supposed  that 
this  steamer  must  have  been  a  secessionist  privateer."  Mv.  Grebert  had 
previously  said  that  the  INIohican  was  at  Siaint  Vincent,  and  that  he 
"  there  gathered  information  that  in  the  neighboring  waters  anotliei 
vessel  of  war  was  cruising,  suppose<l  to  be  the  Vanderbilt;"  but  attliat 
tinu^  the  Vanderbilt  was  Admiral  AVilkes's  flag-ship  in  the  West  Indies. 

Mr.  Grebert  arrived  at  Bahia  on  14th  May,  and  there  "  an  officer  ot 
the  Georgia  told  me  that  the  Georgia  had  been  seen  at  Saint  Vincent; 
but  went  higher  up,  {qy.  to  a  higher  latitude  ?)  when  she  discovered  the 
Mohican  in  the  port  of  Saint  Vincent." 

It  is,  therefore,  very  probable  that  the  steamer  supposed  to  have  boon 
the  A^mderbilt  was  the  Georgia,  and  that  the  Georgia  made  out  the 
Mohican  in  tlie  harbor,  although  the  latter  failed  to  see  the  Georgia. 

]Mr.  Webb,  in  a  letter  to  Mr.  Seward  of  23d  June,  18G3,  showed  evi- 
dently that  he  was  not  satisfied  with  the  zeal  shown  on  another  occasion 
by  the  Mohican,  though  he  suggested  that  her  commander  "  may  have 
been  misled  by  some  cunningly  devised  report."  He  indulged  iu  the 
hope  that  the  converted  merchant  sailing-vessel  Onward  miglit  be 
more  successful  than  the  Mohican  had  been  in  the  search  for  the  Ahi 
bama,  Florida,  and  Georgia,  all  then  on  the  coast  of  Brazil.^ 


te 


Q(» 


m 


SHENANDOAH. 

"  The  United  States,  as  to  the  Shenandoah,  make  the  same  statement 
which  they  have  already  made  in  reply  to  the  statements  of  Her  Maj- 
esty's Government  touching  attempts  to  intercept  or  capture  the  Geor 
gia." — United  States  Counter  Case,  sec.  x'ui,  par.  o, 

No  mention  is  made,  in  the  Syno])sis  of  Orders,  of  this  ship;  and  it  is 
nowhere  stated  that  any  United  States  vessel  was  ever  sent  in  search  of 
her. 

Without  again  going  over  the  same  ground  with  regard  to  the  Niag- 
ara, Sacramento,  &c.,  it  may  be  confidently  stated  that  the  Iroquois 
was  the  only  vessel  which,  it  could  possibly  be  suggested,  was  ever  in 
jiursuit  of  the  Shenandoah. 

Putting  aside,  tor  the  nu)nuMit,  the  fact  of  her  orders  referring  to 
"rebel  privateers"  generally,  a  comparison  of  dates  and  a  slight  exam- 
ination of  facts  will  sliow  tluit  this  ship's  actual  proceedings  had  no 
reference  whatever  to  the  Shanandoah. 

Thelroquois  received  her  orders  "to  leave  European  waters,  and  cruise 
oft'  Madeiras,  Brazil,  Cape  of  Good  Hope,  and  to  Batavia,  East  Indies, 
for  rebel  privateers,"  about  the  middle  of  September,  1864. 

These  orders  from  the  Secretary  of  the  Navy  would,  therefore,  proba 
bljj^  have  been  dated  about  the  1st  September.  It  was  then  known  at 
Washington  that  the  only  Confederate  cruiser  at  sea  was  the  Florida, 
the  fiite  of  the  Alabama,  and  the  sale  as  a  merchant-ship,  though  not 
the  capture,  of  the  Georgia,  being  also  known  to  the  Navy  Department ; 
her  capture  must,  however,  have  been  known  to  the  Iroquois  when  the 
orders  reached  her. 

The  Iroquois  left  Portsmouth  on  the  17th  September,  1804,  and  finally 


'Ainn'udix  to  BritisU  fuse,  vol.  i,  j).  iJHSi. 


« Ibid.,  p.  887. 


ANNEX  D. EXPENSES  OF  PUKSUIT. 


357 


(juitted  Englaiul  on  tLe  23d  September,  bavins'  gone  to  Dover  to  pro- 
vision.' 

She  was  then  stated  by  lier  Captain  to  be  "abont  to  sail  for  a  station 
remote  from  the  shores  of  Europe."  ^ 

At  this  time  nothing  was  known  of  the  Sea  King,  or  Shenandoah  ;  no 
mention  was  made  of  her  until  six  weeks  afterward,  when  Mr.  Dayton, 
writing  from  Paris,  informed  Mr.  Seward  that  he  had  advised  Captain 
Craven,  of  the  Niagara,  not  to  follow  the  Sea  King,  as  he  had  "little 
coulidence"  in  the  reliability  of  the  reports  from  ]Mr.  Morse,  the  consul 
ill  London ;  ^  this  was  ten  days  before  any  communication  was  made 
iesi)ecting  her  by  the  United  States  Legation  to  Earl  Eussell. 

The  Shenandoah  was  commissioned  at  Desertas  on  the  20th  October, 
made  several  prizes  off  the  Coast  of  Brazil,  then  proceeded  to  ]Melbourne 
without  touching  at  any  port  en  route,  and  arrived  there  on  the  25th 
Jauuary,  1805  ;  she,  however,  called  off  the  Island  of  Tristan  d'Acunha, 
;md  landed  some  crews  of  prizes  she  had  taken  and  destroyed.^ 

On  the  day  following  her  arrival  at  Melbourne  the  ]Mail  left  for  Eu- 
rope, taking  without  doubt  newspapers  giving  accounts  of  her  arrival, 
as  well  as  the  reports  to  that  effect  Avliich  the  United  States  Consul 
stated  he  then  sent  to  3Ir.  Adams,  and  to  the  United  States  Consul  at 
iloug-Kong.' 

The  Iroquois,  following  out  her  orders,  was  at  Table  Bay  0th  January, 
1805,  and  at  ^Mauritius  20tli  January,  1805." 

As  it  could  not  have  been  known  at  either  of  tliesc  ports  at  the 
respective  dates  tliat  the  Shenandoah  had  gojie  to  the  eastward  of  the 
(Jape,  it  is  clear  that,  not  only  could  the  Irocpiois'  orders  have  had  up  to 
this  date  no  reference  to  the  Shenandoah,  but  that  her  movements  could 
not  have  been  influenced  bj'  any  tidings  she  could  have  heard  at  either 
of  these  places  of  that  vessel's  movements. 

It  is  true  that  the  Iroquois  is  reported  to  have  called  at  Tristan 
(lAcunha  on  her  way  from  the  Brazils,  and  taken  tlie  crews  of  the 
prizes,  who  had  been  left  there  by  the  Shenandoah,  to  the  Cape,  but  it 
is  hardly  probable  they  were  able  to  give  the  commander  of  the  Iroquois 
any  clue  to  the  Shenandoah's  future  proceedings,  and,  in  fact,  the  Iroquois 
was  officially  reported  as  having  left  the  Cape  for  Batavia,  showing  that 
uo  deviation  from  her  orders  was  then  contemplated  in  consecpience  of 
any  such  clue.  She  coaled  neither  at  the  Cape  nor  at  tiie  j\Iaui'itius, 
although  three  montlis  had  elapsed  since  she  had  been  to  a  British 
j)ort;  hence  it  may  be  inferred  she  Avas  not  pressing  on  in  actual  pursuit 
of  any  particular  ship,  but  was  making  her  passages  leisurely  under  sail. 

It  is  not  probable  that  the  Irocpiois,  on  arrival  at  Ceylon  on  the  17th 
February,  received  any  s[tecial  orders  from  the  Navy  Department  rela- 
tive to  the  Shenandoah,  as  on  the  lltii  of  the  i)revious  month  Mr.  Seward 
had  officially  informed  Iler  Majesty's  Ciiarge  d'  Affaires  at  Washington 
that  "a  reliable  representation"  had  been  made  to  the  Department 
"that  the  Shenandoah  will  be  found  in  the  neighborhood  of  Bermuda."'' 
Again,  Mr.  Seward,  in  writing  to  Mr.  Adams  nearly  a  fortnight  later 
(on  the  27th)  upon  the  subject  of  the  Shenandoah's  captures  off  the  coast 
of  Brazil,  made  no  reference  to  special  orders  being  sent  to  any  cruisers," 


'  Appendix  to  British  Case,  vol.  v,  p.  224. 

-  Diplomatic  CorrcHpouileiict',  lWi4-'(i.'j,  Part  ii.  \ 

'  Ibid.,  Part  iii,  p.  172. 

^Appendix  to  Ikitisli  Case,  vol.  i,  pp.  499,  058. 

■'  Appendix  to  Case  of  the  United  States,  vol.  vi, 

'  Appendix  to  British  Case,  vol.  v.,  pp.  22H,  2;JI{. 


.302. 


58S. 


'  Ibid.,  vol.  i, 


498. 


'■W 


^1 


^^ 


n-^ 


"Appendix  to  Case  of  the  United  States,  vol.  iii,  p.  335. 


M 


i»!.i,!ii  m)iiii.ii(iifpif 


358 


BRITISH    ARGUMENT. 


nor  is  any  mention  made  in  the  synopsis  of  further  orders  being  sent 
to  the  Iroquois,  as  in  other  cases  when  the  cruisers  received  fresh  in 
strnctions. 

Had  she  obtained  any  inkling  from  the  crews  of  the  prizes  tali  en  from 
Tristan  d'Acunha  that  the  Shenandoah  was  likely  to  have  made  tb  .  "raits 
of  Malacca  and  their  neighborhood  her  cruising-grouud,  it  would  seem  to 
have  been  at  once  the  proper  and  the  natural  course  of  the  Commander 
of  the  Iroquois  to  have  filled  up  with  coals  at  the  Cape,  and  pushed  ou 
forthwith  to  Batavia,  replenished  coal,  and  then  to  have  proceeded  to 
the  Confedeiato  cruiser's  expected  cruising-grouud,  Avithin  which,  in 
three  months  from  leving  the  Cape,  he  could  again  have  coaled  either 
at  Singapore  or  Peuang. 

It  will  have  been  seen  that,  on  arriving  at  Ceylon,  the  Iroquois  wouUl 
probably  have  heard  through  the  newspapers  of  the  arrival  of  the  Shen- 
andoah at  Melbourne.  It  would,  however,  seem  that  she  staid  tlicrc 
eight  days  to  take  in  but  150  tons  of  coal;^  and,  instead  of  proceeding 
at  once  to  Melbourne,  to  endeavor,  through  i>ersonal  communication 
with  the  United  States  Consul,  to  get  on  her  track,  the  Iroquois  went  to 
Penang,  from  whence,  on  or  about  the  2d  March,  1805,  the  senior  British 
naval  officer  in  the  Straits  of  Malacca  reported  to  his  commandcr-in 
chief,  Vice- Admiral  Kuper,  then  in  China,  that  "the  United  States  sloop 
Iroquois  has  appeared  at  Penang,  with  the  avowed  intention  of  eiidea\ 
oring  to  intercept  the  Confederate  cruiser  Shenandoah." 

On  the  29th  May,  1SG5,  she  is  reported  to  have  been  at  Singapore,  ami 
still  in  search  of  the  Confederate  steamer  Shenandoah. 

She  was  thus  probably  for  nearly  three  months  in  the  Straits  of  Ma 
lacca  and  its  neighborhood — in  fact,  near  Batavia — the  destination  indi 
cated  in,  and  therefore  it  may  be  presumed  obeying,  her  original  orders, 
which,  as  before  stated,  could  have  had  no  reference  to  the  Shenandoah. 

In  June  or  July  she  must  have  quitted  her  station,  for  on  the  12th 
August,  18G5,  she  was  at  the  Cape  on  her  way  back  to  the  United 
States.  This  step  of  returning  homeward  could  have  had  no  reference 
to  the  Shenandoah. 

She  called  at  St.  Helena  on  the  25th  August,  18G5.  While  there,  her 
commander  informed  the  Governor  that  he  had  taken  otf  from  Tristan 
d'Acunha  the  people  landed  from  the  Shenandoah  and  conveyed  them 
to  the  Cape  of  Good  Hope  in  the  early  part  of  that  year;  and,  also,  that 
"  he  had  been  to  the  eastward  in  search  of  the  Shenandoah,  and  believed 
she  had  proceeded  to  the  Pacific,  where  it  was  to  be  apprehended  she 
might  do  some  mischief  among  the  American  whalers  in  those  regions."^ 

On  a  full  review  of  these  facts,  and  with  the  light  thrown  on  the 
Iroquois's  proceedings  by  this  conversation  of  her  commander  with  the 
Governor  of  St.  Helena,  it  cannot  be  seriously  contended  she  was  ever 
in  actual  or  even  constructive  pursuit  of  the  Shenandoah.  She  left 
England  with  no  such  orders;  it  is  not  averred  in  terms  that  she  or  any 
other  United  States  cruiser  ever  had  such  orders ;  she  never  deviated 
substantially  from  the  orders  laid  down  for  her  guidance  before  proceed- 
ing to  her  "distant  station;"  while  on  that  distant  station  she  never 
went  far  from  Batavia,  the  final  point  named  in  her  orders;  and  her 
commander  avowed  that  he  quitted  the  station  with  the  belief  (as  was 
the  fact)  that  the  Shenandoah  was  destroying  whalers  in  the  Arctic 
seas.  Surely  no  proceedings  can  be  less  unlike  "pursuit"  than  those  of 
the  Iroquois;  that  her  officers  should,  while  in  the  Straits  of  Malacca, 
have  named  the  Shenandoah  as  the  then  special  object  of  their  quest, 


'  Appendix  to  liritish  Case,  vol.  v,  p.  22;). 


*  Ibid.,  vol.  V,  p.  22\). 


ANNEX  D. EXPENSES  OF  PURSUIT. 


359 


was  natural,  since  she  was  then  the  only  "rebel  privateer"  known  to  be 
in  existence,  and  they  would  have  said  so  in  good  faith,  but  of  course 
witli  no  notion  that  the  whole  cost  of  their  cruise  was  to  be  eventually 
claimed  from  Great  Britain.  If  such  a  claim  were  admissible,  a  similar 
claim  would  bj  equally  admissible  on  account  of  every  United  States 
ship  of  war  of  suflicieut  force  then  in  commission,  since,  if  the  Shenau- 
tloah  had  ftillen  in  the  way  of  any  such  ship,  it  would  have  been  the  duty 
of  that  ship,  as  it  was  that  of  the  Iroquois,  to  capture  her;  but  this  is 
not,  cannot  be,  "pursuit."  It  is  therefore  obvious,  from  this  further 
investigation,  that  the  Admiralty  Committee  were  fully  Justified,  on  every 
groniul,  in  considering  as  inadmissible  the  claim  made  on  her  account. 
Tiie  claim  made  in  the  United  States  Case  for  the  pursuit  of  the  Shen- 
andoah, the  asseveration  in  their  Counter  Case  that  "  Ilcr  Majesty's  Gov- 
ernment is  mistaken  in  its  belief  that  no  endeavor  to  intercept  or  capture 
the  Shenandoah  appeared  to  have  been  made  by  the  Government  of  the 
United  States,"  and  the  large  sum  involved  in  this  claim,  amounting, 
without  interest,  to  no  less  than  $329,805.08,  will,  it  is  hoped,  afford 
good  and  substantial  grounds  for  thinking  that  the  labor  and  reseirch 
expended  in  the  investigation  of  this  particular  case  have  not  b'^en 
fruitless. 


IXAl)E(iUACY  AND  WAXT  OF  CO>'CKRT  OF  UNITED  STATES 
NAVAL  FORCE  ABROAD,  ETC. 

The  United  States  ministers  abroad  were  constantly  calling  the  atten- 
tion of  their  Government  to  the  inadequacy  of  their  naval  forces  to  arrest 
the  career  of  the  Confederate  cruisers.  Messrs.  Adams,  Dayton,  Pike, 
Perry,  Webb,  Harvey,^  one  and  all  at  different  times  dwell  on  this 
theme ;  but  when  the  letters  on  the  subject  (and  many  of  the  consuls 
made  similar  representations)  were  referred  to  Mr.  Welles,  he  may  be 
said  to  have  acted  always  as  if  he  regarded  this  question  as  wholly  sub- 
ordinate to  that  of  the  blockades;  hence  it  is  seen  that  the  most  suitable 
vessels  were  taken  from  the  pursuit  to  re-enforce  the  blockading  squad- 
rons, without  regard  to  the  injury  which  the  depredations  of  the  Confed- 
erate cruisers  were  inflicting  on  the  United  States  commerce.  Some- 
times he  explained  that  it  was  want  of  men  which  prevented  him  from 
sending  a  greater  force  in  pursuit;^  but  with  the  number  of  seamen  at 
his  disposal,  28,000  in  1802  and  30,000  in  1803,  exclusive  of  officers,  this 
excuse  would  seem  to  be  of  little  avail  when  the  facts  are  sift^ed.  How- 
ever, besides  this  notorious  inadequacy  of  force  to  compass  the  ends 
which  it  is  submitted  the  United  States  Government  ought  to  have  had 
in  view,  and  to  have  considered  a  necessary,  if  not  the  first,  duty,  there 
were  other  causes  in  operation  which  are  disclosed  sufficiently  in  the 
correspondence  laid  before  Congress  and  the  House  of  Representatives, 
and  which  tended  to  impair  the  efficiency  of  the  small  force  detailed  for 
this  special  service ;  they  were — 

(A.)  The  absence  of  any  communication  to  many  of  the  different  lega- 
tions of  the  movements  of  the  several  men-of-nar  in  European  waters, 
of  which  there  are  many  complaints. 

(B.)  The  fact  that  there  was  no  naval  head  or  senior  officer  in  Euro- 
pean waters ;  each  ship  appeared  to  act  independently  and  for  itself ; 
there  was  a  consequent  absence  of  all  concerted  action. 

'For  instances,  see  Diplomatic  Correspondence,  1862-63,  part  li,  pp.  908,  980,  1278; 
1864-U'),  part  iii,  p.  323;  part  iv,  pp,  275,  302,  319,  325 ;  ISGr-'G^,  part  iii,  p.  102. 
*  Diplomatic  Correspondence,  1864-'65,  part  iii,  p.  42. 


^ 
>? 


9m 


360 


BRITISH    AR(;UMENT. 


From  tliese  caust's  coinbined,  which  may  be  abuiKhintly  proved  I'loni 
the  United  Htates  documents,  and  which  were — 

(a.)  Insnfticiency  of  force; 

{b.)  Ignorance  of  movements  of  the  ships  on  the  part  of  United  States 
Ministers ; 

(c.)  Independence  of  action  on  the  part  of  each  sliip  ; 
it  may  fairly  be  inferred  that  the  United  States  Government  did  not 
"  actively  and  diligently  exert  their  naval  power"  to  arrest  the  courso 
of  the  Alabama  or  the  other  Confederate  cruisers. 

KlMiOKS  IN  THE  SYNOPSiS  OF  OliDEIlS. 

Frcijuent  rofereiiee  is  made  in  the  Keport  of  the  Admiralty  Couuiiirteo 
and  its  Appendices,  as  well  as  in  this  paper,  to  errors  in  the  syno[>si.s  of 
orders ;  a  few  fresh  illustrations  may  not  be  inapt : 

(«.)  The  Chippewa  is  stated  to  have  been  watching  the  t'umtor  at 
Algeciras  to  the  .'>()th  ^lay,  18(53.  Now  not  only,  as  is  well  known,  liad 
the  Sumter  left  Gibraltar  as  an  unarmed  ship  on  the  previous  stli  ot 
February,'  but  the  Chippewa  was  herself  with  some  of  Admiral  AVilkos's 
shii)s  in  the  West  Indies,  at  Cape  llaytien,  on  the  L*lst  May,  ISiJ.'!,  ami 
at  Nassau,  "  from  St.  Thomas,''  on  the  2Gth  May.^  She  had  been  at 
Cadiz  on  the  12th  February,  and  again  in  March,  and  she  was  at  Ma- 
deira in  April ;  hence  the  synopsis  must  oe  in  error  in  stating  that  she 
was  watching  the  Sumter  at  Algeciras  to  the  oOth  May,  1803. 

(/;.)  The  Kearsarge. — In  the  admiralty  report  it  lias  been  noticed  witli 
reference  to  this  ship's  orders  of  30th  September,  18G2,  "  to  capture  tlie 
Eappahannock  or  other  rebel  privateers  in  European  waters,"  that  the 
synopsis  must  be  in  error. 

Mr.  Welles,  in  his  report  of  the  1st  December,  1802,  stated,  at  '•  last 
Jidvices  (she)  was  also  in  pursuit  of  the  200,"  (page  23.) 

In  the  United  States  Case  she  is  stated  to  have  been  at  Gibialtar 
"with  the  Tuscfirora,  watching  the  Sumter,  and  it  is  implied  that  this 
was  continued  till  that  vessel's  sale. 

The  Kearsarge  was,  in  fact,  about  the  time  to  which  Mr.  Welles  must 
have  referred  to,  viz,  on  the  30th  Septeuilcr  and  on  3d  November, 
watching  the  Sumter  at  Gibraltar,^  and  on  the  4th  November  she  nas 
at  Cadiz ;  she  was  certainly  not  in  pursuit  of  the  Alabama,  which  ves- 
sel was  then  in  the  AVest  Indies. 

(c.)  Ino. — There  is  a  claim  on  behalf  of  this  sailing-ship  for  fifteen 
months  for  convoying  the  Aquila  with  the  monitor  Caminiche  on  board. 
Now  the  Camanciie,  on  the  1st  February,  1863,  was  building  at  Jersey 
City,  and  on  the  14th  March  of  the  following  year,  was  at  San  Fran- 
cisco, California.^  It  seems  more  probable  that  there  is  a  further 
errror  in  the  synopsis  than  that  this  service  should  have  taken  tifteen 
months  to  perform. 

{d.)  Juniata. — From  the  synopsis  of  orders,  the  dates  given,  and  the 
amount  of  the  claim  on  her  behalf,  it  would  be  inferred  that  this  ship 
commenced  her  service  with  Admiral  Wilkes's  squadron  on  the  4th 
December,  18G2 ;  whereas  she  did  not  leave  the  United  States  for 
nearly  five  months  after  that  date.  A  correspondent  of  the  New  York 
Herald,  writing  on  the  22d  January,   1863,  says  that  tie   Juniata, 

'  Appemlix  to  British  Case,  vol.  ii,  p.  57. 

'^United  States  Navy  Report,  December,  1861?,  p.  557  ;  Appendix  to  British  Case.  vol. 
V,  p.  225. 

'  Appendix  to  British  Case,  vol.  v,  p.  229. 
••United  States  Navy  Registers  for  1863  and  1864. 


ANNEX    D. EXPENSES    OF   ri'KSUIT. 


3(U 


whicb  had  been  nmler  sailing  orders  siiue  November,  was  still  at  Phil- 
adelphia,  being  detained  by  a  defect  in  her  machinery,  (Neiv  York  Her- 
ald, January  liG,  1803.)  She  went  to  Fortress  Monroe  on  the  17th 
March,  and  sailed  for  the  Havana  on  the  2r>th  April,  18G3,  (see  New- 
York  Herald  of  that  date.)  The  United  States  Navy  Jlegister  for  180;t 
shows  that  on  the  1st  Febriuiry,  1803,  she  was  in  Hampton  I'oads, 
and  not  with  the  West  India  squadron. 

(e.)  The  Connecticut. — To  cruise  between  IJermuda  and  Nassau  to 
watch  for  the  Sumter  from  3d  August,  1803,  to  7th  September,  1803. 

This  claim  is  made  for  a  period  when  the  Sumter,  as  admitted  in  the 
United  States  Case,  p.  88,  had  changed  her  character,  and  become 
the  Gibralt.ar.  She  sailed  from  Liverpool  on  the  3d  July,  1803,  as  a 
merchant-vessel  without  armament,  with  a  cargo  of  warlike  stores  for 
Charleston,  ^  and  the  Connecticut  was  doubtless  employed  to  look  out 
for  her;  but  as  she  was  then  simply  a  blockade-runner,  or  a  merchant- 
ship,  with  contraband  of  war  on  board,  or  both,  it  is  clear  that  under 
110  circumstances  could  this  claim  be  admissible  under  the  treaty. 

(_/'.)  Tlconderofia. — In  a  note  in  the  appendix  to  the  report  of  the  ad- 
miralty committee,  ^  attention  is  called  to  the  fact  that  between  jMay, 
18G3,  and  June,  1801,  although  her  cost  is  claimed,  no  service  is  given 
in  the  synopsis  of  orders  for  the  period.  This  was  not  an  omission  to 
specify  the  service,  but  an  error  in  the  dates  and  charges ;  as  within 
the  period,  for  which  it  would  otherwise  be  inferred  she  was  in  pursuit 
of  Confederate  cruisers,  she  was  actually  under  repairs  (had  "  work 
done*')  at  the  navy-yards  of  Brooklyn;  Charlestown,  Massachusetts; 
Philadelphia,  and  Norfolk,  respectively ;  '  and  she  is  shown  in  the  Navy 
Kegister  for  1801  as  being  on  the  12tli  of  ]\tarch  of  that  year  "ready  for 
sea  at  Philadelphia. "'  Again,  it  is  obvious  that  she  could  not  have 
been  employed  in  the  Culfof  Saint  Lawrence  protecting  the  fisheries 
(lurii)?  the  winter. 

[g.)  Siaf/ara. — The  claims  on  account  of  this  ship  and  the  Sacramen- 
to have  been  already  dealt  with  in  the  admiralty  report  and  its  post- 
script on  the  grounds — 

1.  That  they  are  generally  inadmissible. 

2.  That  they  extend  far  beyond  the  existence,  as  confederate  cruisers, 
of  the  vessels  on  account  of  which  the  claims  are  nmde. 

3.  That  they  extend  to  periods  long  after  the  cessation  of  hostilities. 
But  in  addition  to  these  fatal  errors  or  objections  to  the  claims,  the 

following  are  also  obvious  errors : 

4.  Mr.  Adams  stated  that  the  Niagara  had  left  France  for  the 
United  States  on  the  8th  August,  1805;*  the  claim,  however,  embraces 
a  period  forty-four  days  beyond  that  date,  although  a  vessel  of  her 
speed  could  hardly  have  occupied  that  time  in  making  the  passage 
across  the  Atlantic. 

5.  The  Niagara  accompanied  the  llussian  squadron,  which  convoyed 
the  remains  of  the  Czarovitch  from  Lisbon  to  the  North  Sea,  and  for 
^bich  act  of  courtesy  the  Ilussian  government  expressed  itself  deeply 
sensible  and  grateful  to  that  of  the  United  States ;  but,  through  a 
manifest  error  in  the  synopsis  and  in  the  claims,  the  cost  of  the  ship 
for  this  period  is  claimed  against  the  British  Government.  ^ 

(A.)  Nereiis. — The  claims  for  this  ship  on  convoy  service  embrace  a 


'  Appendix  to  Case  of  the  United  States,  vol.  vi,  p.  203. 

^Appendix  to  British  Cae3,  vol.  vii,  p.  75. 

^  United  States  Navy  Report,  December,  1864,  pp.  1,005  et  scq, 

^  Diplomatic  correspondence,  1865-'66,  part  i,  p.  572. 

f' Ibid.,  part  iii,  p.  127. 


,;i  ■'■' 


fii&,v«J^ 


362 


BRITISH    AROJJMENT. 


period  during  which  she  was  employed  with  the  fleet  at  the  attacks  on 
and  final  capture  of  Fort  Fisher  between  24th  December,  18G4,  and  lotli 
January,  1805.^  She  may  have  been  employed  on  this  service  for  a  much 
longer  period,  and  she,  as  well  as  her  consorts  in  convoying  duty,  may  liavo 
been  often  similarly  withdrawn  during  the  periods  embraced  in  the 
claims,  as  it  is  only  incidentally  that  errors  of  this  character  can,  in  the 
absence  of  complete  information  as  to  the  orders  and  the  movements  of 
the  United  States  cruisers,  be  discovered. 

It  is  thus  shown  that  tliere  is  a  suflieieiitly  large  number  of  patent 
errors  in  the  synopsis  of  orders  to  warrant  its  authority  on  matters  of 
fact  being  questioned,  when  other  data,  generally  derived  from  United 
States  official  documents,  point  to  dilierent  conclusions.  They  are  ad- 
duced with  this  sole  object,  as  they  generally  refer  to  claims  which 
have  not  been  regarded  as  admissible  (on  the  hypothesis  ex[)laii,ed  iu  the 
admiralty  report)  under  the  treaty,  and  consequently  it  has  not  beeu 
thought  necessary  to  give  their  money  value. 

ADMIKAL  WILKES'S  FLYING  SQUADROX. 

The  total  amount  claimed  for  the  services  of  this  flying  squadron, 
which  originally  consisted  of  one  converted  merchant-steamer,  four 
second-class  steam  sloops,  three  paddle-wheel  steamers,  one  sailing-ship, 
one  sailing  store-ship,  and  one  sailing-ship  occasionally,  if  not  always, 
used  as  a  coal-ship,  is  so  large  ($1,457,130)  that  it  may  not  be  thought 
an  abundance  of  caution  to  add  to  the  reasons  which  the  admiralty  com- 
mittee justly  looked  on  as  conclusive  why  these  claims  should  be  con- 
sidered wholly  inadmissible : 

1.  The  accounts  of  prizes  captured  by  United  States  cruisers,  which 
have  beeu  carefully  examined,  the  returns  of  visits  of  United  States 
ships-of-war  to  British  West  India  Islands,  and  the  incidental  notices 
scattered  here  and  there  in  the  reports  of  the  Secretary  of  tiie  Navy  to 
Congress,  in  other  official  papers,  and  in  the  newspapers  of  the  day. 
abundantly  prove  that  for  the  periods  respectively  claimed  none  of  these 
ships,  though  the  squadron  is  called  ''  flying,"  proceeded  beyond  the 
limits  officially  designated  by  Mr.  Welles  as  the  "  West  Indies."  When 
finally  broken  up  under  the  command  of  Admiral  Lardner,  Admiral 
Wilkes's  successor,  Mr.  Welles  spoke  of  it  as  the  "  West  India  squadron  ;"' 
the  term  "flying"  is  an  ex  post  facto  designation. 

2.  The  continuance  of  this  squadron  as  an  organization  had  no  refer- 
ence whatever  to  the  confederate  cruisers,  but  solely  to  the  duration  of 
the  trade  at  Matamoras.  Mr.  Welles  stated  in  his  report  of  7th  Decem- 
ber, 18G3,  (page  viii,)  that  "  the  occupation  of  Rio  Grande  and  Browns- 
ville (13th  November,  1863)  has  put  a  final  termination  to  the  lately  ex 
tensive  commerce  of  Matamoras,  which  is  becoming  as  insigniflcant  as 
it  was  before  the  rebellion." 

Now  at  that  date  the  Alabama,  Florida,  an«l  Georgia  were  in  being  as 
confederate  cruisers,  and  yet  so  little  were  their  i)rooeedings  heeded  in 
reference  to  this  "flying  squadron"  that,  taking  the  dates  from  the 
synopsis  of  orders,  when  that  report  was  written  the  squadron  had 
dwindled  down  to — 

The  Tioga,  a  paddle-wheel  steamer  of  809  tons ; 

The  sailing-vessel  Gemsbok,  which  was  frequently,  if  not  always,  used 
as  a  coal  or  as  a  store  ship ; 

And  the  sailing  store-ship  National  Guard. 

1  United  States  Navy  Report,  December,  1865,  pp.  28,  77. 

2  Ibid,  December,  1864,  p.  xix. 


ANNEX    D. EXPENSES    OF    PURSUIT. 


363 


,'eiueiits  of 


It  (?iuin()t  be  aiipposeil  the  Tioga  was  ever  afterward  detached  from 
^\(lmiral  Lardner's  squadron  or  sent  in  the  actual  jmrsuit  of  any  of  the 
cont'edcrate  cruisers,  (all  then  on  the  other  side  of  the  Atlantic,)  since 
on  tlio  L'4th  March,  1804,  she  was  off  Elbow  Light,  (IJahamas,)  and  it 
may  be  assumed  slie  was  within  the  limits  assigned  to  her  by  her  orders 
until  the  claim  on  hei  account  ceased,  viz,  27th  June,  1804.' 

All  the  other  vessels  stated  to  have  composed  this  scpiadron  had,  at 
(lirt'orcut  times,  been  i)reviously  withdrawn,  and  were  afterward  to  be 
found  attached  to  blockading  squadrons. 

The  words  "  stated  to  have  composed''  an  used  intentionally,  as  it  is 
impossible  to  reconcile  the  dates  given  in  the  abstract  of  the  claims  with 
those  given  elsewhere ;  for  instance,  in  the  case  of  the  Juniata,  as  already 
bliown,  there  is  an  error  of  nearly  live  months ;  in  the  Navy  llegister  for 
January,  18(J3,  the  Gemsbok  and  the  Oneida  are  shown  as  attached  to 
blockading  squadrons,  an«l  in  that  for  January,  1804,  the  Tioga  is  named 
as  attached  to  the  East  Gulf  blockading  squadron — duties  palpably  in- 
consistent with  the  pursuit  of  the  confederate  cruisers. 

Tlie  claim  on  account  of  the  Oneida  commences  on  the  very  day  (IGth 
January,  1800)  that  she  allowed  the  Florida  to  escape  from  Mobile.  It 
is  believed  that  after  that  date  she  continued  to  be  employed  in  the 
blockade  of  that  i)ort,  as  she  is  stated  in  the  Xavy  Ilegister  for  1SG3  to 
have  been  attached  to  the  AVest  (iulf  s<(uadron  on  the  1st  February, 
18C3. 

MISCELLANEOUS  CASES, 

Xot  (itjccthig  the  claims  eo)isit1eyc(l  h\f  the  admiralty  committee  as  admissi- 
ble {npon  the  hypothesis  explu'ncd  by  them)  for  arbitration. 

VANDERBILT. 


1 


It  should  be  borne  in  mind  that,  notwithstanding  her  superior  speed 
and  armament,  the  Yanderbilt  was  an  untit  vessel  to  send  in  pursuit  of 
the  Alabama,  since  she  was  wholly  dependent  on  her  steam-power ; 
hence,  after  making  a  passage,  if  she  could  not  replenish  her  coal,  she 
\va8  powerless ;  this  explains  parts  of  her  proceedings. 

On  her  way  to  the  Cape  she,  in  obedience  to  her  orders,  -went  to  Fer- 
umdo  Noronha,  Pernambuco,  and  Rio,  there  coaled,  and  notwithstand- 
ing she  was  in  pursuit  of  an  enemy  remained  in  port  nineteen  days.  ^  As 
a  matter  of  fact,  if  she  had  staid  there  about  live  or  six  days  and  sailed 
on  the  L'Oth  July  direct  for  the  Cape,  (as  she  was  ordered,)  she  would, 
instead  of  never  meeting  the  Alabama,  have  found  her  in  Table  Bay. 

From  liio  she,  however,  went  to  St.  Helena,  there  took  all  the  coals 
she  could  get,  (400  tons,)  but  on  her  arrival  at  Simon's  Bay  (where  it 
was  not  known  that  she  had  been  at  St.  Helena)  she  was  again  allowed 
to  coal,  taking  nearly  1,000  tons.  *  After  remaining  eight  days  "  paint- 
ing ship,"  (so  Semmes  says  in  "  My  Adventures,"  page  608,)  she  again 
put  to- sea  and  went  to  Mauritius,  where  she  was  again  allowed  to  coal, 
(though  under  what  circumstances,  or  what  representations  her  captain 
made  to  the  governor,  it  is  nowhere  stated,)  but  there  is  another  unac- 
countable delay  in  port  of  seventeen  days ;  ^  she  returned  to  Table  Bay, 

'  Uniteil  States  Navy  Report,  December,  1865,  p.  485 ;  Appendix  to  Case  of  the  United 
States,  vol.  i,  p.  360. 
^  United  States  Navy  Report,  December,  1863,  p.  xxiv. 


'Appendix  to  British  Case,  vol. 


V,  pp.  228,  934. 


^Ibid.,p.  233. 


ill' 


364 


Hinnsil    AKdllMENT. 


n 


ami  made  arraiiffcineiits  to  coal  before  obtainiug  nerniission ;  tliis  wa^ 
of  course  refused,  aiul  her  coaling  stopped,  but  not  until  she  liatl  tui.oii 
nineteen  tons  on  board.  Tlien  hearing,  doubtless,  that  there  was  coal 
at  Angra  l*e(|ueria,  her  captain  went  there  and  took  possession  of  it 
saying  "  ho  must  have  coal,'"  and  with  this  supply  he  went  to  St.  Ik-una 
and  iiahia,  where  doubtless  he  obtained  a  further  supi)ly,  thenco  to 
Barbados  and  to  the  United  States. 

These  facts  prove : 

1st.  That  the  Vanderbilt  was  not  fitted  for  the  pursuit  to  such  distant 
regions,  where  supi)lies  of  coal  were  limited,  owing  to  her  haviiij;  no 
sail-power. 

2d.  That  in  addition  to  deviating  from  her  orders  she  exhibited  uo 
haste  in  <iuittiiig  some  of  the  ports  she  touched  at  to  e:ury  on  her  \n\v- 
suit. 

SAN  JACINTO.  I 


Of  this  vessel's  proceedings  there  are  more  full  details  than  of  those 
of  any  of  the  other  United  States  cruisers,  given  in  a  letter  of  tlie  800. 
retary  of  the  Xavy  of  30th  August,  1871,  Appendix  to  Case  of  the 
United  States,  vol.  vi,  p.  34r>. 

Semmes  describes  her  as  having  a  more  powerful  battery  and  double 
the  crew,  but  that  the  Alabama  had  the  "  speed  of  her  ;"  however,  it 
may  be  assumed  she  was  not  an  unsuitable  vessel  to  have  been  sent  in 
the  pursuit ;  she  was,  as  will  be  subsequerttly  shown,  withdrawn  alter 
being  about  two  and  one-half  months  on  this  service,  and  was  afterward 
attached  to  the  eastern  blockading  squadron. 

li  the  arbitrators  consider  that  she  is  proved,  as  stated  at  p.  138  ot 
the  British  Counter  Case,  to  have  been  remiss  in  allowing  the  Alabama 
to  escape  from  ^[artinique,  a  question  would  then  arise  whether  any 
portion  of  the  claim  made  in  her  behalf  Avas  admissible,  and  whether 
such  claim  (if  any)  could  be  carried  be3'0ud  the  date  of  the  AlabaiuiVs 
escape. 

AIGUSTA. 


Nothing  is  known  of  her  cruise,  which  only  lasted  ten  weeks,  ami 
consequently,  though  she  was  a  suitable  vessel  for  the  service,  she  must 
necessarily  have  performed  it  in  a  very  perfunctory  manner.  She  does 
not  appear  to  have  called  at  Dermuda  or  any  of  the  British  West  ludiii 
Islands. 

She  was  afterward  employed  in  the  Xorth  Atlantic  bloekiuling  siiuail- 


rou.' 


DACOTAlI. 


Also  a  suitable  vessel ;  was  withdrawn  after  but  one  month's  service, 


and  for  the  same  service. 


NIAGARA. 


It  may  possibly  be  thought  unnecessary  to  accumulate  further  proots 
as  to  what  was  the  actual  employment  of  this  ship,  since  the  postscript 
to  the  admiralty  report,  and  the  United  States  official  documents  thereiu 
mentioned,  will,  it  may  be  considered,  have  proved,  conclusively  that  she 

'  See  "  Correspondeuce  respectiug  tlie  capture  of  the  Saxon  by  the  United  States  ship 
Vanderbilt,"  laid  before  Parliament,  (North  America,  No.  2,  1864,)  pp.  1,  7,  12. 

^  See  Navy  Register,  1863 ;  also,  Navy  report,  December,  1863,  p.  56,  and  Synopsis  ot 
Orders. 


ANNEX    l>. KXPKNsivS    OF    riKsriT. 


365 


tU\s  service, 


was  not  SLMit  to  Europe  in  pursuit  of  any  of  tlio  Coiifodorato  vossols 
mimod  in  tho  United  States  t'liso,  bht  to  v.  atch  tlie  vossols  then  being 
constructed  for  the  Confederates  in  Freneli  ports.  Tlie  chiini,  however, 
lortliis  ship  is  so  vast  in  amounl,  (>Jt<U.S,l,'.'>i,)  that  it  is  thouj-ht  better, 
at  the  risk  of  bein;:?  prolix,  to  give  other  ^notations  from  United  States 
sources  wliicli  have  been  met  with,  and  whieli  are  very  ]tertinent  to  tlie 
contention  tliat  she  never  was  engaf^ed  in  pursuinj;'  the  Alabama  or 
Florida. 

True  it  is  tluit  on  the  L'Stli  April,  ISGi,  Mr.  Adams  informed  Mr.  Sew- 
ard tliat  the  Alabama  was  "reported  at  Cape  Town,  ami  about  to  come 
to  rrance;"'  and  as  the  ^^iagara  left  the  United  States  the  end  of  tho 
Ibllowing  mouth,  it  might  be  not  unmiturally  inferred  that  she  was  dis- 
patched to  JCurope  in  consequence  of  these  tidings,  and  hence  that  she 
was  sent  in  pursuit  of  the  Alabama ;  but  a  dispatch  from  jNIr.  Seward 
to  3[r.  Adams  of  the  28th  May,  when  that  of  the  2.Sth  April  must  have 
1)0011  receiv^ed,  effectually  disposes  of  this  liypothesis.  '"■  The  Niagara," 
Mr.  Seward  stated,  "  will  go  to  Europe  on  >V"eduesday  next.  *  *  * 
We  have  adopted  this  policy,  not  alone  on  account  of  the  naval  expe- 
ditions with  which  we  are  threatened  from  IJritish  ports,^  but  also  be- 
eanse  we  have  not  l)een  able  to  procure  entirely  satisfactory  assurances 
from  the  French  Government,"  o.  f.,  about  the  vessels  building  at  Bor- 
deaux. 

Mr.  Adams  had,  two  days  before,  (2Gth,)  written  to  'Mr.  Seward  to 
this  effect:  "My  impression  i  that  hereafter  the  base  will  be  substan- 
tially transferred  to  the  othc  i  ^ide  of  tho  Channel,"  and  he  also  refers  to 
the  four  vessels  in  process  of  constvaction  in  France.' 

Attention  has  been  already  cidlcd  by  the  committee  to  the  Niagara 
being  "  without  orders."  Mr.  Harvey,  the  United  States  minister  at 
Lisbon,  writing  to  Mr.  Seward  on  the  29th  November,  1804,  confirmed 
this  curious  and  important  fact  in  these  terms :  "  In  saying  that  I  refer 
to  the  fact  that  the  Niagara  has  been  practically  tied  up  for  several 
months  at  Flushing,  Antwerp,  and  the  British  colonies,"  (query,  Chan- 
nel,) "and,  as  is  understood,  waiting  for  orders  whi(;h  are  to  regulate 
her  further  movements."* 

Can  it  still,  in  the  face  of  the  overwhelming  evidence  to  the  contrary, 
be  seriously  contended  that  from  30th  INFay,  1804,  to  the  2()th  Septem- 
ber, 1805,  the  Niagara  "was  cruising  in  the  North  Atlantic  in  search  of 
the  Alabama  and  Florida  f 

MONEY  CLAIMS— FuirniER  abate:ments  suggested. 

Where  none  are  suggested  the  cniisers  are  not  named. 

TUSCAEOBA. 

It  has  been  already  shown  that  she  never  went  to  the  West  Indies  in 
pursuit  of  the  Alabama  and  Florida,  and  consequently  the  amounts 
^vbich  were  considered  admissible,  upon  the  hypothesis  of  the  admiralty 
report,  under  the  belief  that  she  had  carried  out  her  orders,  should  be 
abat<^d  as  follows : 

'Diplomatic  Correspondeuce,  1864-'r);'),  Part  i,  p.  (341. 

-Ibid.,  part  ii.,  p.  60.  At  this  time  the  only  f  nifetlerate  cruiser  in  a  British  port  of 
tlie  whole  of  those  named  in  the  United  State's  Case  -was  tho  Georgia,  then  dismantled, 
ami  known  to  be  for  sale;  conseqnently,  tho  "naval  expeditions "  which  Mr.  Seward 
\vas  apprehensive  of  could  not  have  co-,»-iisted  of  any  of  the  C  jnfederate  cruisers,  which, 
Ity  auy  possibility,  could  be  considered  to  come  within  tho  purview  of  the  treaty  of 
AVashiiigtou. 

^  Ibid.,  Part  ii,  p.  29.  ■•  Ibid.,  Part  iv,  p.  325. 


T^W^nWrffm^W^ 


366 


BRITISH    ARGUMENT. 


Amount  considered  liypothctically  admissible  by  the  Committee |S0. 705  -jS 

Abatements  sn gjjested  on  account  of  the  Alabama $32, 7;{fi  29 

Abatements  sufjgested  on  account  of  the  Florida '.12,  TSO  9.9 

or.,  472  of< 

There  would  still  remain  a  sum  considered  Lypothetically 
admissible,  which  refers  to  a  period  of  six  weeks  before 
the  Alabama  left  Liverpool,  and  to  another  of  four  weeks 
during  which  the  Tuscarora  was  visiting  British  ports;  she 

111  illy  went  to  Cadiz  on  the  2d  September,  1863  ;  amounting  —  _. 

to V!4.2l»:5  uo 


fiv.- 


SAN   JACINTO. 

Reference  has  already  been  made  to  a  letter  from  the  Secretary  of  the 
Navy,  giving  details  of  this  ship's  proceedings ;  but  it  is  by  no  means 
a  full  report,  as  no  mention  is  made  of  her  visit  to  Martinique,  when 
the  Alabama  escaped  from  her,  nor  does  it  mention  the  fact  that  alter 
this  escape  the  San  Jacinto  was  no  longer  employed  in  pursuit  of  the 
Alabama,  but  was  attached,  during  a  part  of  the  period  for  which  claims 
are  made,  to  the  East  Gulf  blockading  squadron.  This  is  shown  in  the 
Navy  Register,  where,  on  the  1st  January,  as  well  as  on  the  1st  f  eb- 
ruarj^,  18(>3,  she  is  named  as  attached  to  this  squadron,  though  the  pre 
cise  date  at  which  she  was  withdrawn  from  the  pursuit  is  not  given.  It 
the  official  Navy  Register  needed  confirmation,  it  would  be  found  in  a 
correspondence  from  Key  AVest  of  the  loth  January,  18G3,  published  in 
the  New  York  Herald  of  January  L'7,  which  stated  that  "  she  (the  San 
Jacinto)  comes  from  St.  Thomas  for  supplies,  and  will,  I  nnderstaml 
be  temporarily  attached  to  the  Eastern  Gulf  blockading  squadron." 
Taking,  however,  the  date  given  in  the  Navy  Register,  viz,  1st  Jan 
uary,  1803,  as  the  date  of  her  withdrawal  from  the  pursuit,  tlie  claims 
on  her  account  Avould  stand  thus  : 

Amount  considered   hypothetically    admissible  l>v  the  Admiralty  Com- 
mittee   \ §»)."),  421  41 

Proportion  now  shown  to  be  inadmissible lii,  iSIi  'J(i 


Amount  that  may  now  be  couisidered  hypothetically  admissible  ....      4'J,  238 


MOHICAN. 

It  has  been  already  shown  why  this  ship  should  be  considered  tohfive 
been  performing  the  ordinary  duties  on  a  foreign  station^  until  the  Dtli 
May,  1863,  when  she  left  the  Cape  de  Verdes  for  the  Brazils,  and  may 
be  assumed  to  have  commenced  her  pursuit  of  the  Alabama.  She  event 
ually  arrived  at  Table  Bay  on  the  11th  December,  1863.^  Here,  with 
out  waiting  to  ascertain  where  the  Alabama  had  gone,  which  she  might 
have  done  (if  he  could  not  remain  at  the  Cape)  by  proceeding  to  Bonrbou 
or  to  the  Mauritius,  her  captain,  like  the  commander  of  the  Vanderbilt, 
gave  up  the  pursuit,  and  on  the  19th  December  turned  his  ship's  heail 
homeward,  w^here  he  arrived  in  April,  1864.  Although  a  very  suitabk' 
ship  for  the  pursuit,  and  although  when  she  arrived  in  the  United  States 
the  Florida,  Alabama,  and  Georgia  were  on  the  high  seas,  she  was 
withdrawn  from  this  special  service,  and  was  afterward  employed  on 
the  North  Atlantic  blockading  squadron. 

It  is  therefore  clear,  on  these  premises,  that  the  (hypothetically)  ati- 
missible  claim  on  account  of  this  ship  could  not  extend  beyond  the 

'  That  the  Cax»e  de  Verdes  was  the  foreign  station  to  whidi  the  Mohican  was  pro- 
ceeding iu  the  ^)erformance  of  an  ordiuiiry  duty  when  she  called  at  Bermuda  miiy  b" 
fairlv  inferred  from  her  being  there  on  the  'ilst  December,  18G2;  22d  January,  IWll) ; 
20th  February,  1803;  2l8t  March,  1803;  22d  April,  1863;  leaving  on  the  Uth  May,  1*' 
for  the  Brazils. 

'^Appendix  to  British  Case,  vol.  v,  p.  228. 


•etary  of  the 


ANNEX  D. EXPENSES  OF  PURSUIT. 


367 


period  embraced  between  tbe  9th  May,  18G3,  when  she  may  be  con- 
siderfHl  to  have  commenced  the  pnrsnit,  and  the  19th  December,  when 
she  abandoned  it,  the  amount  of  which  could  not  exceed — 

Amouut  considered  by  the  Admiralty  Committee  asjlij-potbetically  admis- 

B2r)S,  310  32 


slble. 


.*a 


Proportirn  now  shown  to  he  inadmissible 151,863  7(5 

Amouut  that  may  now  he  considered  hypothetically  admissible 106,446  56 


WACHUSETT. 

Second  cruise : 

She  was,  as  before  stated,  a  suitable  vessel,  and  her  cruising-grouud, 
well  chosen  to  intercept  the  Alabama  when  returning  to  Europe  or 
again  going  south.  Although  she  actually  captured  the  Florida  in 
Bahia,  the  Admiralty  Committee  considered  itself  justified,  by  the  synop- 
sis of  her  orders,  in  considering  her  as  in  search  of  the  Alabama  only; 
but,  on  the  supposition  that  she  was  cruising  near  the  line  and  making 
only  occasional  visits  to  Brazilian  ports,  it  was  of  opinion  that  the 
claim  was  admissible  up  to  the  10th  September,  thus  allowing  her  three 
months  to  learn  the  fate  of  the  Alabama.  It  turns  out,  however,  as 
before  stated,  that  the  Wachusett  spent  a  large  portion  of  her  time  in 
port.  The  news  of  the  sinking  of  the  Alabama  on  the  19th  June,  18G4, 
was  taken  to  the  Brazils  by  the  French  packet  which  left  Bordeaux  on 
tbe  24th  June  and  arrived  at  Kio  de  Janeiro  on  the  18th  July,  at  which 
(late  tbe  Wachusett  must  have  learned  the  news,  as  she  arrived  at  Eio 
(le  Janeiro  on  the  7th  July,  and  did  not  leave  until  the  3d  of  the  follow- 
ing month,  when  she  sailed  for  Bahia  and  arrived  there  on  the  12th 
August.  Hence  the  claim  on  her  account  for  the  pursuit  of  the  Ala- 
bama would  cease  on  the  18th  July.  The  fact  of  her  remaining  in  port 
sixteen  days  after  the  news  arrived  and  then  going  on  to  Bahia  is  a  fur- 
ther proof  that  the  Florida  was  not  a  special  object  with  her.  The 
claim  on  account  of  the  Wachusettjwould  stand  thus  : 

Amount  considered  hvpothetically  admissible  [by  the  Admiralty  Connnit- 

teo .' $  1 45 ,  036  66 

I'loiiortion  now  shown  to  he  inadmissible 3f^,  666  *J8 


Amount  that  may  now  bu  considered  hypothetically  admissible....     107,269  68 


RHODE  ISLAND. 

This  case  is  precisely  the  same  as  that  of  the  Be  Soto,  and  although 
she  did  not  h.ippen  to  take  as  many  prizes  as  that  vessel,  yet  her  actual 
positions  from  time  to  time  can  be  sutiiciently  traced  to  prove  that  she 
never  went  in  pursuit  of  the  Alabama,  but  was  continuously  employed 
on  the  same  kind  of  service  as  Admiral  Wilkes's  squadron,  in  the  imme- 
diate vicinity  of  the  Bahamas.  In  the  Navy  Begister  for  Ist  Januarj', 
1861,  she  is  given  as  belonging  to  the  West  Indian  squadron,  and  she 
was  Avithdrawn  from  the  service  before  the  sinking  of  the  Alabama, 
showing  that  her  employment  was  not  dependent  on  the  Alabama's 
career  or  movements. 
Tho  Ehode  Island's  positions  on  the  following  days  were : 

12th  May,  18G3 Hog  Island,  Bahamas. 

21st-L'3d  May,  1803 Cape  Haytien. 

30tU  j\ray,  18G3 P^leutliera,  Bahamas. 

l«th  August,  18G3 Latitude  27°  N.,  longitude   70°  W.,'  [(where 

.she   captured    steamer   Cronstadt'.\value, 

$301,940.)i 

'Appendix  to  British  Case,  vol.  v,  p.  2'2o ;  United  States  Navy  Iteport,  December, 
i«)J,  pp.  oo7,  507  ;  Diplomatic  Correspondence,  1^64-65,  part  ii,  pp.  4ia  et  aeq. 


tWR 


4 


I 


368 


BRITISH    ARGUMENT. 


ii" 


T-. 

- 

;'  1 

t^ 

'' ; 

i 

1 

31  St  August,  18G3 St.  Thomas. 

IGth  September,  18G3 St.  Thomas. 

IGth  October,  18G3 St.  Thomas. 

As  she  therefore  never  went  in  pursuit  of  the  Alabama,  the  whole  of 
the  claim  on  her  account  is  inadmissible,  amouutii  g  to  $177,972.0(5. 

SACRAMENTO. 

With  reference  to  the  Postscript  to  the  Admiralty  Report,  it  now  aj)- 
pears,  as  before  stated,  that  the  Sacramento  was  at  Lisbon  on  the  2!)th 
June,  18G3,  and  must  therefore  on  that  day,  if  not  before,  either  there 
or  at  some  other  European  port,  have  heard  of  the  fate  of  the  Alabama. 
The(hypothetically)  admissible  claim  on  her  account  would  consequently 
be  subject  to  a  further  abatement  of  at  least  fourteen  days,  and  would 
stand  thus : 

Amount  origiually  coiiHidered  hjiiotlietioally  admissible  by  the  Admiralty 

Committee . . .  /. $112, 205  22 

Abatement  suggested  by  the  Postscript  to  the  Report G,  KJS  Tfl 

Further  abatement  now  suggested b,'M9  IH 

Amount  that  may  now  be  considered  hypothetically  admissible 97,441  'M 

WYOMING. 

Until  the  middle  of  18G3  the  Wyoming  was  the  only  United  States 
vessel  of  war  in  the  East  Indies,  including  China  and  Japan,  (the  James- 
town sailing-sloop,  sent  to  reinforce  her,  being  at  the  Cape  on  the  14tli 
March. )^  When  the  orders  of  the  26th  January,  18G3,  were  sent,  as  well 
as  when  they  would  have  reached  her  headquarters,  Macao,  she  had  to 
perform  the  whole  of  the  duties  of  this  extensive  station ;  and,  in  fact, 
in  July  of  that  year,  the  Wyoming  attacked  the  batteries  of  Simonosaki, 
in  consequence  of  an  outrage  upon  an  American  ship;^  hence,  it  would 
appear,  she  wa^  'lot  able  to  put  the  orders  to  proceed  to  the  Straits  of 
Sunda  to  watch  for  the  Alabama  into  execution  until  the  25th  Septem- 
ber, 1SG3.  She  was  at  Singapore  on  1st  December,  having  been  near 
the  Straits  of  Sunda  when  the  Alabama  passed  through,  early  in  ^Jovciu- 
bcr,  and  where  she  had  been  for  some  time  on  the  lookout  li)r  the 
Alabama. 

After  leaving  Singapore  she  went  to  lUiio,  where  she  remained  loiij; 
enough  to  receive  a  ball  from  the  Dutch,  and  give  one  in  return  ;  and 
yet  the  Alabama  had  been  burning  shii)s  almost  within  sight  of  her. 

She  was  at  Labuan  between  15th  and  18th  December,*  "  in  search  of 
the  Alabama,"  and  it  is  probable,  judging  from  the  dates,  that  she  had  a 
fair  wind  up  the  China  Seas,  that  she  called  at  IVEanila  after  leaving 
Labuan,  and  was  repaired  at  the  royal  dock-yard  at  Cavite,  as  she  was 
not  at  Hong-lvong  until  the  9th  February.^'  Here  she  must  have  hoard 
of  the  visit  of  the  Alabama  to  Singapore ;  that  she  had  left  on  the  23d 
December,  going  to  the  westward,  and  that  she  was  off  Malacca  on 
Christmas  Day.  Is'^ow,  the  commander  of  the  Wyoming  must  either.  o;i 
the  9th  February, 

(a)  Have  given  up  the  pursuit,  or,  (what  amounts  to  the  same  thing. 
so  far  as  any  claim  against  Great  Britain  is  concerned,) 

'  Appendix  to  British  Case,  vol.  v,  p.  228. 

■^United  States  Navy  Report,  December,  18(3:1,  pp.  558,561. 

■'Semmes's  Adventures  Allont,  p.  708. 

*  Appendix  to  IJritish  Case,  vol.  v,  p.  2'J2. 

'•  Ibid.,  p.  2-M. 


ANNEX    1). — EXPENSES    OF    PURSUIT. 


869 


[h)  Have  considered  that  he  had  fulfilled  his  orders;  for,  instead  of 
ijoins  to  the  southward,  he  reappeared  at  Hong-Kong  on  the  9th  March.' 
At  this  time  he  probably  received  his  further  orders  of  the  "21st  No- 
vember, 18(5;i,  to  continue  cruising  until  news  of  the  destruction  of  the 
Alabama  should  reach  her,  then  to  return  to  the  United  States;"  as  in 
little  over  nine  weeks  (KJth  May)  she  was  at  Table  13ay,^  and  her  passage 
tlown  the  China  Sea  being  against  the  southwest  monsoon,  she  must 
liiive  proceeded  immediately  on  receipt  of  these  further  orders;  but 
whatever  chance  there  may  have  been,  had  she  proceeded  in  February  and 
not  then  iiractically  have  given  up  the  i)ursuit,  in  March  she  had  none. 
Indeed,  it  is  abundantly"  clear  that  the  Wyoming  did  not,  when  she 
arrived  at  the  Cape,  regard  herself  as  in  pursuit  of  the  Alabama,  but 
as  simply  homeward  bound ;  Since  otherwise  she  would  have  followed 
the  Confederate  cruiser  to  Europe,  which  wns  known  to  be  her  destina- 
tion. On  the  28th  April  Mr.  Adams  (writing  fiom  London)  informed 
}h\  Seward  that  the  Alabama  was  "  reported  at  Cape  Town  and  about 
to  come  to  France,"'  information  which  he  doubtless  received  from  the 
Cuitod  States  Consul  at  the  Cape ;  Avho  would  also,  without  doubt,  have 
imparted  it  to  the  commander  of  the  Wyoming  on  his  arrival  there  in 
May;  but  instead  of  following  up  the  Alabama  until  he  heard  of  her 
ilestrnction,  (which,  at  all  events,  might  have  given  a  color  to  tiiis  part 
lit'  the  claim,  which  covers  the  cost  of  the  ])assage  of  the  ship  from  her 
station,  China,  to  tlie  United  States,)  he,  notwithstanding  his  positive 
orders  to  that  ett'ect,  appears  to  have  made  the  best  of  his  way  to  the 
United  States. 

It  would  thus  seem  that  the  period  for  which  a  claim  (tould  be  made 
lor  this  ship  could  not  extend  beyond  the  nth  Februnry,  1804,  when  she 
practically  abandoned  the  pursuit  of  the  Alabama,  and  cc  nse(piently 
the  amount  hypothetically  admissible  would  stand  thus : 

Amount  considenMl  bv  th(i  Adiniialty  Coiiimittee  to  he.  Iiypothetieally  lul- 

missilile '. ." 4;-202,  (ili'i  iVi 

i'lnportioii  uow  sbowu  to  bo  inadniissiblo 110, 1563  14 


^?  *■»_«'> 


Anioiiiit  that  itiay  now  b(!  considciiHl  as  hypothetically  adniia.Hible. 


y-i,  'i'j'j  4K 


There  are  two  or  three  noticeable  and  curious  features  connected  with 
this  claim  : 

1.  The  United  States  Minister  at  Japan  seems  to  have  had  no  expec- 
tatiou  that  the  Wyoming  would  have  quitted  the  station  when  she 
ilid;  her  doing  so  caused  him  great  embarrassment.* 

-.  During  the  period  for  w  hich  claims  are  made  against  (Jreat  Britain, 
Uritish  men-of-war  were  assisting  the  Wyoming's  consort  (a  sailing 
vessel)  on  the  station,  and  receiving  the  thanks  of  the  United  States 
(ioverument;  for  instance: 

When  the  Jamestown,  the  consort  herself,  was  ashore  near  Yeddo  in 
October,  1803; 

When  the  Encounter  took  an  American  consular  prisoner  from  Japan 
to  Shanghai  in  January,  1804  ; 

Her  Majesty's  steamer  Perseus  assisting  the  American  baik  Maryland, 
iishore  in  Japan,  &c.'' 


'  Appendix  to  British  Ciiso,  vol,  v,  p.  223. 

=  Ibid.,  p.  y2H. 

^Diplomatic  Correspcmdence,  18(i4-'r),  I'art  I.  p.  641. 

■*  Diploiiintic  Correspoiideiict',  181)4-'"),  Part  III,  j»p.  447,  49:5,  517. 

''Ibid.,  Part  I.  p.  :51(i:  Part  II,  p.  197;  Pait  III,  p.  r92. 

24  C 


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ii'   . 


370  BRITISH    ARGUMENT. 

CONCLUSIONS. 

From  these  premises  the  followinj?  results  are  deducible : 

(a.)  Tuat  on  the  1st  December,  18G2,  ouly  two  suitable  vessels  wort" 
in  the  actual  pursuit  of  the  Alabama. 

(h.)  That  ou  the  following  December  the  two  were  reduced  to  one. 

(c.)  That  when  she  was  sunk,  there  were  only  three,  including  tlie 
Kearsarge. 

(</.)  That  there  were  never  more  than  three  effective  vessels  in  search 
of  the  Alabama  at  any  one  time. 

(e.)  That  during  the  months  of  February,  March,  and  April,  18G3, 
there  was  no  effective  vessel  in  i>ursuit. 

(/'.)  That  the  average  uuniber  of  United  States  vessels  in  pursuit, 
while  the  Alabama  was  pursuing  her  career,  was  less  than  two. 

(g.)  That  the  United  States  Navy  was  increased  from  400  to  000 
vessels  during  this  period ;  a  considerable  proportion  of  which  were 
suitable  vessels. 

{h.)  That  on  the  1st  Dec^ember,  1802,  no  vessels  were  in  pursuit  of  the 
Florida. 

(/.)  That  on  the  7th  December,  18G.'>,  no  vessels  were  in  pursuit  of  the 
Florida. 

(_/.)  That  on  the  7th  October,  18G4,  when  captured  at  Bahia,  two 
vessels  were  in  pursuit  of  her,  exclusive  of  the  Wachusset. 

{h.)  That  no  United  States  cruiser  was  sent  in  special  pursuit  of  the 
Georgia. 

(l.)    Nor  of  the  Shenandoah. 

(/«.)  That  the  claim  for  the  conditional  arbitration  considered  ad 
missiide  (upon  the  hypothesis  explained  in  the  Admiralty  lieport) 
ou  account  of  the  Alabama  should  be  accordingly  further  abated 
by $530, 104  21 

(H.)  On  accouni  of  the  Florida 32, 736  2!) 

(0.)   On  account  of  the  Sumter,  {sec  Connecticut,  p.  83)  .       20, 051  00 

(p.)  And  the  hypothetically  admissible  amounts  so  corrected  wouhl 
stand  thus: 

For  the  four  Confederates  in  Class  I $940, 400  24 

For  the  Alabama  onlv 891,  rm  Si' 

For  the  Florida  only  \.. 48, 87!>  4'.' 

P.  S. — With  reference  to  the  note  on  page  351  as  to  the  cruise  of  the 
Vanderbilt,  it  would  appear  from  announcements  in  the  New  York 
Herald  during  the  mouths  of  November  and  December,  1802,  and  Jan- 
uary, 1803,  that  this  vessel  was  at  least  20  days  in  ports  of  the  United 
States  during  those  months.  The  following  are  the  dates  of  her  arrival 
and  departure:  Sailed  from  New  York  November  0,  1802;  returned 
November  30.  Sailed  again  December  11,  and  returned  to  F<  "♦^-oss 
Monroe  January  17, 1803,  from  whence  she  did  not  sail  again  till  afier  cue 
28th  of  the  same  mouth,  when  she  left  with  the  Weehawken  monitor  in 
tow.  This  suggests  a  still  further  abatement  of  $30,000  i«i  the  claiin  for 
this  vessel,  reducing  the  total  amount,  hypothetically  considered  admi? 
sible  for  arbitration  on  account  of  the  Alabama,  to  $801,580.82,  and 
that  for  the  four  vessels  Class  I  to  $910,400.24. 


III. 


SUPPLEMENTARY  STATEMENTS  OR  ARGUMENTS 


M.VUI';    »Y  THE 


RESPECTIVE  ACtENTS  OR  COUNSEL 


sCnSECit'KXTI.Y   TO 


FILING  THE  ARGUMENTS  ACCORDING  TO  THE 
PROVISIONS  OF  THE  TREATY. 


■^ 

151 

;     ,  ::|-r-:P 

^  .  :i'  \ 

Hp^ '  ^' ' ' 

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l'.^^ 

,',  '- 

-sm'l  ■■?. 


i^ 


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it  ' 


iWJ»i'!«^^jJJ(J 


r  'j? 


1  ' 

r 

n ' 

m 


CONTENTS. 


I.  Statenioiit  of  Sir  Kotiudcll  Palmer,  Jniie  iiTtli,  lri7'^. 
II.  Iveply  of  the  Counsel  of  the  United  States  to  tbo  same. 

III.  Ar<;umeiit  of  Sir  Itonndell  Palmer  on  the  points  mentioned  in  the  resolution  of 

the  Arbitrators  of  July  25,  1872.    Filed  July  29,  1872. 

IV.  Argument  of  Mr.  Evarts  in  reply  to  the  argument  of  Sir  IJoundoll  Pahncr. 

V.  Argument  of  Mr.  Cu.sbing  in  reply  to  the  argument  of  Sir  lloundell  Palmer. 

Vr.  Keply  of  Mr.  Waito  to  the  argument  of  Sir  Koundell  Palmer  on  the  special  <[ncs- 
tion  of  the  supplies  of  co.al. 

VII.  Argument  of  Sir  Koundell  Palmer  on  the  (|uestion  of  the  recruitment  of  men  for 

the  Slienaudoah,  at  Melbourne. 

VIII.  Ob.servations  of  Mr.  Gushing  concerniiig  the  enlistments  for  tin?  Shenandoah,  at 

Melbourne. 

IX.  Argument  of  Sir  Ronndell  Palnuu"  as  to  the  legal  etl'ect  of  tlie  entry  of  the  Flor- 
ida into  Mobile. 

X.  Reply  of  the  Counsel  .>i  the  United  States  to  the  argument  of  Sir  Koundell 
Palmer  on  the  special  (luestion  of  the  legal  ellcct  of  tlie  entry  of  the  Florida 
into  Mobile. 

XI.  Argument  of  Sir  Ronndell  l*almer  on  the  claim  of  the  United  States  for  interest. 

XII.  Keply  of  the  Conusel  of  the  L'nited  States  to  the  argument  of  Sir  Ronndell 

Palmer  on  the  question  of  interest. 

XIII.  Comparative  Tables  presented  by  the  Agent  of  the  United  States  on  the  IDth  of 

August,  1872,  in  compliance  with  the  recjuiist  of  the  Tribunal. 

XIV.  Tables  presented  by  the  Agent  of  Her  Britannic  Majesty  on  the  IDth  of  August, 

1872,  in  compliauce  with  the  request  of  the  Tribunal. 
XV,  TJeply  of  the  Agent  of  the  United  States  to  the  new  matter  introduced  by  tlu' 
Agent  of  Her  Rritannic  Majesty  on  the  call  of  the  Tribunal  for  elucidation  in 
respect  to  the  Tables  presented  by  the  two  Governments. 
A VI.  A  note  on  some  observations  presented  i)y  Mr.  IJancroft  Davis,  on  the  2S>th  of 
An  gust. 


% 


IWi''^ 


» I 


-t 


1-STATEiMENT  OF  SIR  KOUNDKLL  PAI.MKR,   MADK  AT 
SEVENTH  CONFERENCE,  ON  THE  Ttm  JUNE,  187-i.' 


THE 


Further  argmnent  appears  to  Her  liritannic  Majesty's  Counsel  to  be 
necessary  on  the  following,  among  otiier  points,  as  to  all 
,/!l!,?.^'K'r'Iiar''H.'  wliicU  lic  is  i)repared  to  show  that  the  new  arguments  now 
'"" "'  advanced  by  the  Counsel  of  the  United  States  are  either 

wholly  erroneous  and  unwarranted,  or  cjilculated  to  mislead,  unless 
corrected  by  proper  explanations  and  qualifications. 

[The  statement  then  continues,  as  shown  j>osf,  pages  380  to  384  in- 
clusive, and  closes  as  follows  :] 

W.—As  to  the  particular  shi2}s,  Florida,  Alabama,  Georgia,  and  SlienaH- 

doah. 

Her  Britannic  Majesty's  Counsel  does  not  here  particularize  various 
new  matters  now  brought  forward  or  suggested  in  the  Argument  of  the 
United  States  as  to  each  of  these  ships.  If  those  matters  should  appear 
to  the  Arbitrators  to  be  of  any  importance,  it  is  not  doubted  that  they 
will  ask  for  and  receive  the  explanations  and  answers  concerning  them, 
which  Her  Majesty's  Counsel  will  be  ready  at  the  proper  time  to  give. 

General  reasons  ichy  further  arguments  on   the  above  points  should  be 

alloiced. 

1.  The  character  of  the  documentary  evidence  presented  in  the  several 
volumes  of  the  Appendix  to  the  Case  of  the  Unite«l  States,  containing  a 
large  mass  of  miscellaneous  papers,  or  extracts  from  papers,  laid  before 
the  Congress  of  the  United  States,  as  to  much  of  which  it  was  necessa- 
rily impossible  for  Her  Britannic  Majesty's  Government  to  anticipate  the 
use  which  would  be  made  of  them  in  argument  until  the  present  Argu- 
raeut  of  the  United  States  was  presented. 

2.  The  course  taken  by  the  Government  of  the  United  States  in  with- 
liolding  (as  far  as  was  possible)  their  reply  as  well  to  the  Case  as  to  the 
Counter  Case  of  Great  Britain  until  the  Argument  was  delivered,  so  as 
to  make  it  impossible  for  the  arguments  to  be  at  the  same  time  delivered 
on  the  part  of  Her  Britannic  Majesty's  Government-  to  deal  adecpiatelj- 
by  anticipation  with  many  important  views  which  it  wgs  intended  by 
the  United  States  to  present  to  the  Tribunal. 

3.  The  new  and  copious  use  made  in  the  Argument  by  the  United 
States  of  extracts  from  the  works  of  Sir  Kobert  Philliraore,  and  from 
speeches  and  writings  of  various  British  statesmen  in  Parliament  and 
elsewhere,  to  many  of  which  no  reference  had  been  before  made,  and 
some  of  wliich  are  actually  now  appended  as  new  matter  to  the  Argument 
itself. 


'' 


'M        "* 


^ 


'This  application  was  denied,  and  tiie  reply  which  follows  waa  not  received  by  the 

Tribunal. 


H -RKPLY  OF  THK  COUNSEL  OF  THE  UNITED  STATES  IN 
RESPONvSE  TO  THE  FOREGOING  STATEMENT  OF  SIR  ROIN- 
DELL  PALMER.' 


ll''iHiirm  wl'.v  lur- 
thfrarRiinient  Nliniild 
tint  ^er)r(liTf(l  xt  (hiis 
j(tjiK«  f>\'  the  prcicecil- 


The  Counsel  of  the  United  States  desire  to  submit  to  the  Arbitrators 
some  observations  regarding  the  Memorandum  of  the  Coun- 
sel of  Great  IJritain,  presented  at  the  conference  of  the  I'Ttli 
instant,  in  support  of  the  request  of  the  British  Govern inent 
for  leave  to  tile  an  additional  argument  on  behalf  of  his  Gov 
ernraent. 

I.  The  Arbitrators  having  already  refused  to  grant  that  request  as  be- 
ing incompatible  with  the  first  clause  of  the  fifth  article  of  the  Treaty 
of  Washington,  no  occasion  renifiins  to  discuss  the  Memorandum  in  this 
relation,  but  it  needs  to  be  done  in  relation  to  the  second  clause  of  the 
same  article  of  the  Treaty. 

The  stipulation  is  that  subsequently  to  the  filing  of  written  or  printed 
arguments  by  both  parties  on  the  prescribed  day,  "  the  Arbitrators  may, 
if  they  desire  further  elucidation  with  regard  to  any  point,  require  u 
written  or  printed  statement  or  argument  or  oral  argument  by  counsel 
upon  it." 
In  construction  of  this  clause  we  respectfully  suggest : 

1.  That  under  it  no  <iuestion  of  general  argument  can  arise  until  after 
the  Arbitrators  shall  have  themselves  examined  the  regular  Arguments 
of  the  parties,  together  with  the  respective  Cases  and  Counter  Cases. 
and  come  to  the  conclusion  that  some  particular  point  or  points  may  re 
quire  elucidation.  IJut  this  contingency  cannot  now  have  arrived,  because 
the  regular  and  prescribed  Argument  of  the  IJritish  Government  was 
not  filed  until  the  same  Conference,  and  of  course  there  can  have  been 
as  yet  no  such  examiiis'tion  of  the  subject  as  the  clause  in  question  sup 
poses. 

2.  The  clause  i»resupposes  a  requirement  on  the  part  of  the  Arbitni 
tors  for  reason  of  desire  of  elucidation  on  their  part.  It  conteuiplate.s 
a  particular  state  of  mind  of  the  Arbitrators,  growing  out  of  their  ex- 
amination of  the  subject-matter,  constituting  a  personal  desire,  and  ro 
suiting  in  a  requirement  made  of  their  own  accord  and  foi'  their  own 
satisfaction. 

Such  an  occasion  may  arise,  but  the  Memoraiulnm  is  wholly  iuappli 
cable  thereto.    The  Memorandum  does  not  assume,  or  pretend  to  meet, 
any  retpiirement  or  any  mental  desire  of  the  Arbitrators.    On  the  »<'on 
trary,  it  expresses  only  a  desire  of  the  Counsel  of  the  British  Govern 
ment  to  meet  aHeged  exigencies  of  that  Government. 

.{.  The  clause  of  the  Treaty  contemplates  argument,  written,  printed, 
or  oral,  ibr  elucidation  with  regard  to  any  point.  These  expressions 
manifestly  imply  that,  on  examination,  the  Arbitrators  encounter  some 
point,  some  special  point,  which  for  their  own  satisfaction  requires 
further  discussion  in  order  to  clear  up  a  doubt,  supply  a  lacuna,  or  otliPi' 
wise  afford  information. 

But  the  Memorandum  i)roposes  a  re-argument  of  the  whole  case  and 
of  all  the  questions  submitted,  whether  of  fact  or  of  law,  which  at  this 
stage  of  the  Arbitration  is  wholly  incompatible  with  the  clause  of  thi- 
fifth  article  as  already  decided,  and  equally  incompatible  with  the  second 
clause  of  the  fifth  article. 

'  The  Arl>itrators  dfcliiu'd  to  U'coivc  lliia  !{epiy,  haviugdeuiccl  the  re(iiiest  of  tlu' 
IJritish  Counsel. 


AMERICAN    RKl'LV,    .JUNK    2S,    187'i. 


377 


What  this  .Meinornndmn  proposes  is  still  more  inadmissible  in  the  last 
;is  well  as  in  the  first  relation,  because  its  professed  and  special  object 
is  to  respond  to  the  final  Argument  of  the  United  States.  That  the 
British  Government  has  no  right  to  do,  any  more  than  the  United  States 
liavs  right  to  respond  to  the  final  liritish  Argument.  And  above  all,  in 
the  present  relation,  such  a  responsive  argument  is  inadmissible,  because 
it  is  not  elucidation  of  any  i)articular  imint,  and  still  less  elucidation  of 
any  parti<?ular  obscurity  in  the  minds  of  the  Arbitrators. 

What  the  British  Government  could  not  do  directly,  in  the  form  of 
new  arguments,  it  cannot  do  indirectly  in  the  form  of  an  elucidation  to 
be  called  for  by  the  Arbitrators.  Of  course  the  Arbitrators  will  not  of 
themselves  intimate  a  desire  of  elucidation  which  does  not  exist,  in  order 
to  enable  the  Counsel  of  the  British  Government  to  do  indirectly  what 
lie  has  no  right  under  the  Treaty  to  do  directly. 

II,  The  Memorandum  is  still  more  objectionable  in  a  general  view  of 
the  nature  and  effect  of  the  Treaty,  a lul  what  the  respective  Govern- 
luents  have  already  done  under  it. 

The  Treaty  definitely  stipulates  that  the  two  Governments  shall  lile  sim- 
ultaneously each  its  Case,  its  Counter  Case,  and  its  Argument.  Why  this 
peculiar  form  of  procedure,  so  ditterent  from  that  in  ordinary  courts  of 
justice,  was  adopted,  we  have  iio  right  to  know.  But  Ave  may  suppose 
that  it  was  adopted  on  a  theory  of  perfect  equality  and  reciprocity. 

However  this  may  be,  while  the  arrangement  gives  to  the  United 
States  the  capability  of  an  opening  and  a  closing  discussion  in  the  Case 
and  Counter  Case,  it  gives  the  same  capability  to  Great  Britain, 

Finally,  it  attords  to  each  Government  the  opportunity  to  close  on  the 
tacts  as  well  as  law,  by  means  of  the  Argument,  so  called,  two  months 
alter  the  filing  of  documentary  or  other  evidence  by  either  Government. 

It  is  impossible  to  conceive  of  any  arrangement  more  emphatically 
fnh'  than  this  with  respect  to  both  (jovernments. 

The  Case  of  the  United  States  gave  general  notice  to  Great  Britain 
of  the  claims  preferred,  while  the  simultaneous  Case  of  the  British  Gov- 
ornment  prevented  hasty  conclusion  on  the  part  of  the  Arbitrators. 

The  Counter  (Jase  of  Great  Britain  did  or  might  respond  in  full  to  the 
Case  of  the  United  States  with  similar  consideration  of  the  rights  of 
the  latter  in  their  Counter  Case. 

Finally,  each  party  had  power  to  argue  on  the  facts  and  law,  but  at 
the  same  time  and  on  the  same  plane  right,  so  as  absolutely  to  pre- 
cluile  all  question  of  separate  arguments. 

The  Memorandum  of  the  Counsel  of  the  British  Government  seeks  to 
evade  all  these  Treaty  arrangements,  and  to  tear  down  the  edifice  of 
lierfect  reciprocity  and  equity  so  carefully  constructed  by  the  sti[)ula- 
tions  of  the  Treaty,  by  putting  in  the  very  formal  responsive  argument  so 
laretully  prohibited  by  the  Treaty. 

Evidently  the  two  Governments  did  not  intend  that  the  Argument  of 
either  should  be  a  criticism  on  that  of  the  other.  But  tha'u  is  what  the 
Memorandum  proposes  to  have  done.  Nay,  tlie  ]\[emoranduni  itself  con- 
stitutes an  inadmissible  argumentative  criticism  on  the  Argument  of  the 
I'uited  8tates. 

III.  As  to  the  particular  ships  in  question,  the  Memorandum  sug- 
iiests  that,  the  United  States  have  brought  forward  new  matter  in  their 
Argument.     We  are  not  aware  of  any  such  matter  in  our  Argument. 

The  Memorandum  further  assumes  that  hereafter,  if  occasion  should 
arrive,  the  Arbitrators  would  ask  for  explanation  in  regard  to  the  ships. 
We  do  not  admit  the  assumption,  and  will  not  argue  the  question  by 
anticipation. 


•!f«"?l  *; 


:ws 


sri'l'LKMKNTAKY    AlJiilMKNTS    AM>    Si"A  IKMKN  TS. 


m 


IV.  TIio  McinoraiHlmn  a.s.si}>n.s  us  liirtlier  r(>a.soii  for  re-ar^jnmciif, 
that  the  ]iritish  (lovcrniiiciit  eouhl  not  aiiticipatt;  the  use  to  he  made  in 
our  Arguiiient  of'tlie(hH!Uinentary  (nidence  tiled  with  tlwt  Aineriiiau Case. 
The  suggestion  is  u  siuguhir  oiu'.  Wo  do  not  understand  that  wlion 
counsel  put  in  evidence,  they  are  reijuired  to  ac(!onipany  such  evidence 
with  argumentative  exphinations  of  why  tliey  jmt  it  in.  The  adverse 
party,  versed  i]i  the  rules  of  law  and  the  juactico  of  the  courts,  is  to 
study  such  evidence  and  Judge  for  him.self  of  its  pertinency  or  value. 
If  any  of  the  documents  thus  tiled  were  irrelevant,  it  was  for  theilritisli 
Ciovernnient  to  say  so  in  its  Counter  Case  or  in  its  Argument.  There 
was  ample  time  for  consideration,  namely,  in  the  lirst  relation,  four 
months,  and  in  the  second,  six. 

So,  also,  during  those  four  or  six  months,  there  was  ample  time  for 
the  eminent  Counsel  of  the  British  (lovernment  to  Htudy  tho.se  doeu 
ments,  and  perceive,  with  the  practiced  eye  of  forensic  experience  and 
science,  what  use  might  be  made  of  these  do(;uments  by  the  Counsel  of 
the  United  States,  an<l  to  anticipate  such  use  by  ai)propriate  response 
or  explanation. 

But,  in  fact,  we  have  made  lu)  use  in  our  Argument  of  these  docu- 
ments which  was  not  prefigured,  either  in  the  Case  or  the  Counter  Case 
of  the  American  Government. 

V.  The  Memorandum  objects  that  cause  of  re-argument  is  furnished 
by  "the  course  taken  by  the  (Jovernment  of  the  United  States  in  with- 
holding (as  far  as  was  jmssible)  their  reply  as  well  to  the  Case  as  to  the 
Counter  Case  of  Great  Britain,  until  the  Argument  now  delivered,  so  as 
to  make  it  impossible  for  the  Argumeut,  to  be  at  the  same  time  delivered 
on  the  part  of  Her  Britannic  Majesty's  Government,  to  deal  adequately 
by  anticipation  with  many  important  views  which  it  was  intended  by 
the  United  States  to  present  to  the  Tribunal.''' 

The  situation  complained  of  by  the  Counsel  of  the  British  Government 
was  precisely  the  situation  of  the  Counsel  of  the  United  Statt  s.  We 
also  were  bound  to  anticipate  the  use  that  the  British  Government  in- 
tended  to  make  of  its  evidence.  We  do  not  feel  sure  that  we  fully  com- 
prehend this  difticulty. 

The  American  Government  did  reply  to  the  British  Case  in  the  Amer- 
ican Counter  Case.  How  can  this  act  be  titlj'  characterized  as  "  witb- 
liolding  as  far  as  was  possible  f ' 

As  to  the  British  Counter  Case,  how  could  we  reply  to  it  until  it  had 
come  into  our  possession?  We  received  it  in  April,  and  we  replied  to 
it  at  the  earliest  possible  moment,  namely,  iu  June.  Is  it  proper  for 
the  Memorandum  to  apply  to  this  act  the  phrase  of  "  withholding  as 
ftir  as  ijossible  f 

Our  Argument  was  a  specific  reply  to  the  British  Counter  Case  at  the 
earliest  and  only  possible  moment,  with  but  cursory  and  incidental  ref- 
erence to  the  British  Case,  which  was  for  the  most  part  answered  iu  the 
American  Counter  Case,  with  sufficient  indication  to  eminent  adverse 
Counsel  of  other  points  of  the  British  Case  which  would  require  addi- 
tional attention  in  our  final  Argument. 

VI.  The  Memorandum  further  complains  of  the  use  made  in  our  Argu- 
ment of  the  documents  annexed  to  the  American  Counter  Case. 

We  made  only  such  use  of  these  documents  as  might  well  have  been 
anticipated  by  the  British  Government,  and  as  their  Counsel  should 
have  considered  iu  his  closing  Argument. 

The  British  Case  arraigned  the  conduct  of  the  United  States  in  re- 
spect of  the  manner  in  which  at  various  epochs  of  their  history  they 
had  discharged  their  neutral  obligations. 


ji\»e  at  tbe 


AMKKICAN    KIM'LV,    .JINK    l>->,    1872.  old 

l)(M!.s  or  ciiii  tho  Comiscl  for  the  Ilritish  (i(»v(^rniiu'ift  sii|>]>(»s('  that  we 
Hliouhlomit  to  icspoiul  to  this  Jirriiij;iinu'iit  by  WWua  ilt'fcn.sivt'  in'ools  jim 
the  basis  of  ai  jjmiK'iit  ? 

Does  or  niii  the  Counsel  of  the  Hritisli  (ioveniiiK'iit  suppose  that  we 
»»liotil(l  admit  tlie  peilineiiey  of  this  arniiyiuiieiit,  or  that  we  siiotild  fail 
to  sn}?gest  its  inappropriat«'ness  * 

VII.  The  MenioraiMimn  sii«jo(.sts  as  a  eause  for  rearj;niiieiit,  that  we 
liiive  referred  in  our  Arf^imu'iit  to  the  great  English  work  of  iSir  Hobert 
Philliinore  on  International  Law,  and  to  eminent  statesmen  of  (Ireat 
Ikitain.  We  submit  that  we  are  wholly  unable  to  .see  the  foree  of  this 
consideration. 

In  our  argument  we  ipjote  IMiillimore  as  we  quote  Wolf,  N'attel, 
Martens,  Ilaiitefeuille,  C'auehy,  Calvo,  or  Fiore.     Why  not? 

And  why  shoidd  (Ireat  JSritain  objeet  to  our  (iiting  her  most  eminent 
author  on  the  subject  of  the  law  of  nations  ?  Can  :*;  be  any  sur|>rise  to 
the  Counsel  of  the  JJritish  (lovernment'^  J)id  we  not  in  our  Case  indi- 
cate the  use  to  be  made  of  Sir  IJobert  IMiillimore?    (Pages  117,  11*:?.) 

Then  the  Memorandum  objects  to  our  citing  in  our  Argument  the  emi 
Dent  statesmen  of  (Ireat  liritain,  living  and  dead, — the  Cannings,  the 
Oastlereaghs,  the  Denmans.  the  (irants,  the  Hollands,  the  Althorps,  tbe 
Peels,  the  lluskis.sojis,  the  Colliers,  the  Ilarcourts,  the  Coleridges,  the 
Kedesdales,  the  Ifussells,  the  Granvilles,  the  Cairns,  the  Derbys,  the 
Uatherlys,  the  Salisburys,  the  Palmers,  and  the  Gladstones. 

If  it  be  .just  cause  of  ottense  in  the  ey(;s  of  the  Arbitrators  that  we 
have  referred  in  honorable  ternn  to  these  high  luimes  of  iU'itish  states- 
men, we  submit  to  the  censure  of  the  Tribunal,  but  we  deny  that  the 
ff'X  att'ords  any  reason  w'  y  the  Arbitrators  should  ask  for  elucidation 
ou  the  subject,  or  that  it  justifies  the  apidication  for  additional  argu- 
ment on  the  V'ht  of  the  British  Government. 

VJII.  The  Memorandum  enumerates  under  three  heads,  with  subdi- 
visions, the  main  reasons  of  the  Briti.sh  Government  for  desiring  further 
argument. 

It  is  remarkable  that  each  one  of  the  points  thus  suggested  has  been 
already  argued  by  the  British  Government,  except  one  which  it  pur- 
posely omitted,  either  in  its  Case,  Counter  Case,  or  Arguments.  We  do 
not  say  that  all  these  points  have  been  fully  argued  by  the  British  Gov- 
ernment: that  was  for  their  Counsel  to  judge.  But  they  were  argued, 
and  in  a  much  larger  nnmher  of  Kordn  than  appear  in  the  discussions 
on  the  side  of  the  United  States. 

Reduced  to  the  same  standard,  (that  of  the  page  of  the  IJritish  Ca.se,) 
we  have  the  following  state  of  things : 

I'ages. 

British  Case 168 

British  Counter  Case 154 

British  Argument  and  Notes 91 

Total  pages 413 

American  Case 128 

American  Counter  Case r     11 

American  Argument 200 

Tota    pages 339 


1,' '« 


'"'N 


f 


Surely,  in  view  of  this  comparison,  the  British  Government  has  no 


.■ft^ 


i    ■! 


380 


SUPrLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


cause  to  come  fwward  now  and  supply  deficiencies  in  its  Cases  and 
Argument. 

To  show  that  every  point  on  wbicli  tlie  British  Government  now 
desires  to  be  reheard  is  discussed  in  as  ample  manner  (or  that  it  delib- 
erately refused  to  discuss  it  at  all)  as  it  pleased,  with  six,  four,  or  two 
months'  time  of  reflection,  and  with  all  the  bar  of  Great  Britain  at  its 
back,  we  now  proceed  to  prove  by  the  following  tabular  statement,  the 
right  column  of  which  contains  the  points  which  Sir  Rundell  Palmer 
desires  to  argue  stated  in  his  own  words,  and  our  comments  thereon 
being  as  in  the  left-hand  column  : 

I. — As  TO  rKINCll'LE. 


,  '*« 


This  doctrine  is  referred  to  in  all 
the  Cases  and  Arguments.  It  is 
not  a  new  suggestion  of  princii)le 
in  our  final  Argument. 


Considered  United  States  Case, 
}).  149,  €t  acq.  British  Case,  pp.  o, 
23,  and  li4;  British  Counter  Case, 
pp.  11  to  23;  British  Argument, 
pp.  7  and  S. 


Considered  United  States  Case, 
])p.  loO  to  158;  United  States 
Counter  Case,  p.  G.  British  Case, 
p.  24;  Britisli  Counter  Case,  pp. 
21  and  22 ;  British  Argument,  p. 
8. 


Considered  United  States  Case, 
pp.  100, 118  to  122 ;  United  States 
Counter  Case,  pp.  0  and  7.  British 
Counter  Case,  p.  5 ;  British  Argu- 
ment, p.  9,  et  acq.  See  also  Annex 
"C,''  Jiritish  Counter  Case. 

In  this  paragraph  of  the  3Iemo- 
randum  our  Argument  is  errone- 
ously stated.  Wo  say  that  the 
Queen's  prerogative  is  a  part  of 
the  common  law  of  England.  AVe 
deny  that  the  British  Foreign-En- 
listment Act  was  the  only  law  of 
Great  Britain.  If  .so,  it  should 
have  been  amended. 

Considered  United  States  Case, 
j)p.  O.'J  and  04;  United  States 
Counter  Case,  p.  7.  British  Case, 
pp.  4  to  7;  British  Argument,  p. 
30. 


the    United    States   Argu- 


(rt.)  The  doctrine  of  general  in- 
ternational obligation  asserted 
more  particnlarlv  at  pages  20  to 
23  of 
ment. 

{h.)  The  view  submitted  in  the 
United  States  Argument  (pages 
14G  to  147  and  elsewhere)  of  the 
elieet  in  the  present  controversy 
of  Uer  Majesty's  consent  that  the 
three  liules  embodied  in  the  sixth 
article  of  the  Treaty  of  Washing- 
ton may  be  applied  by  the  Tribu- 
nal as  rules  of  judgment  to  the 
lacts  of  the  present  case. 

(e.)  The  doctrines  as  to  due  <lili- 
gence  and  as  to  the  practical  con 
sequences  of  the  obligation  of  such 
diligence,  and  of  the  omission  in 
any  case  to  use  it,  advanced  more 
particnlarlv  at  pages  l.")!  to  102, 

148  to  149,  and  180  of  the  United 
States  Argument. 

(d.)  The  doctrines  that  a  sover- 
eign power,  in  repressing  acts  con- 
trary to  its  neutrality,  ought  to  act 
by  prerogative  and  not  by  law, 
and  that  any  reference  to  the  in- 
ternal laws  of  a  neutral  State 
ought  to  be  rejected  as  irrelevant 
to  the  question  whether  that  State 
has  used  duo  diligence  in  the  per- 
formance of  its  international  obli 
gations.     (Pages  20,  24  to  20,  27, 

149  to  152,  and  105  of  the  United 
States  Argument.) 


(f.)  The  doctrines  as  to  bellij'er- 
ency  and  neutrality  in  cases  of 
civil  war  set  forth  particularly  at 
pages  7  to  V6,  19,  and  27  of  the 
United  States  Argument,  and  the 
coiu'liislon  thence  drav»'n  as  to  the 


AMERICAN    RKPLY,    .irNE    26,    I87ii. 


381 


iir,  or  two 


it   11    SOVtM'- 


Considered  Ignited  IStatos  Comi- 
ter  Case,  p.  0.  British  Case,  p.  1.'4 : 
British  Counter  Case,  po.  IT)  to  20  ; 
Dritisli  Argnn)ent,  pp.  LM>  to  .■>.".. 


Considered  United  States  Case, 
l»p.  ]2<],  351,  ;5.-)2,  -l^O  and  400. 
Itritish  Counter  Case,  p.  1.");  Brit- 
ish Avj^ument,  pj).  .'53  ai^d  .34. 


Considered  United  States  Case, 
i>.  4.V.K  IJiirish  Counter  Case,  pp. 
(•(MIL';  British  Argument,  p.  2."i-2S. 


s 


recognition  of  tlie  belligerency  of 
the  Confederates  by  Her  Britannic 
Majesty  and  the  effect  of  Her 
Britannic  ]\Iajesty's  Proclamation 
of  Neutrality  and  the  bearing  of 
these  matters  upon  the  present 
controversy,  notwithstanding  the 
admission,  at  page  201>,  that  such 
recognition  of  the  belligerency  of 
the  Confederates  is  excluded  by 
the  terms  of  the  Treaty  of  \N'ash- 
ington  from  being  admissible  as  a 
pecilic  ground  of  claim  before  the 
Tribunal. 

(/,)  The  doctrines  that  the  pub- 
lif  ships  of  war  of  a  non-sovereign 
belligerent  are  liable  to  neutral 
Jurisdiction  or  control  in  cases 
in  which  the  j)ub]ic  ships  of  a  sov- 
ereign belligerent  would  not  be  vso 
liable,  and  that  it  was  part  of  the 
duty  of  Her  Britannic  ]\[jijesty's 
(lovernmeut  toward  the  United 
States,  either  by  virtue  of  the  first 
rule  in  the  sixth  article  of  the 
Treaty  of  Washington,  (u*  other- 
wise, to  detain  certain  of  vhe  Con- 
i'edeiate  vessi^ls,  being  i)ublic  ships 
of  war  of  a  "  non-sovereign  bellig- 
erency," when  found  within  Brit- 
ish ports,  or  (in  the  alternative)  to 
exclude  them  from  all  access  to 
those  ]torts.  (See  pages  l."»2  to 
1.13,  17."»  to  ITS,  and  1S2  oi'  the 
United  States  Argument.) 

{(/.)  The  application  attempted 
to  be  made  in  several  parts  of 
the  United  States  Argument  of 
phrases,  "  l)ase  of  naval  operations" 
and  "angmentation  of  force,"  used 
in  the  second  Bule,  and  particularly 
tlu'  doctrine  (see  pages  ]3(>  to  1.32, 
and  130)  that  to  allow  belligerent 
cruisers  luivigated  by  steam-power 
to  receive  supplies  of  coal  or  ''re- 
pairs which  may  make  their  steam- 
power  effective*'  in  neutral  ports,  is 
a  breach  of  that  Itule  or  of  any 
other  neutral  obligation. 

(/<•)  The  doctrine  that  the  char- 
acter of  acts  or  omissions  on  the 
part  of  a  neutral  power,  which 
would  otherwise  be  consistent  with 
the  due  perfornumce  of  neutral  ob- 
ligations, is  altered  by  the  circum- 
stance that  a  belligerent  has  agents 


!■ 


>.!>■ 


i»!|!!iy!' 


382 


SUrPLEMENTAKY    ARGUMENTS    AND    STATEMENTS. 


I'  <- 


;     >  * 


S*: 


Considered  United  States  Case, 
pp.  101>,  212, 4(i7-181 ;  United  States 
Counter  Case,  Part  IX.  British 
Case,  p.  1G7 ;  British  Counter  Case, 
])p.  130-142;  Notes  in  vol.  7  ot" 
British  Appendix ;  British  Argu- 
ment, pp.  35-37  ;  Annexes  C  and 
1)  to  British  Argument. 


Considered  United  States  Case, 
pp.  100, 110  ;  United  States  Coun- 
ter Case,  p.  16.  British  Case,  p.  24 ; 
British  Counter-Case,  p.  7;  British 
Argument,  jjp.  9-11.  See  also  An- 
nex B  to  British  Counter  Case. 

Considered  United  States  Case, 
p.  112 ;  Uiyted  States  Counter  Case, 
p.  10.  Bi'itisb  Case,  p.  25 ;  British 
Counter  Case,  p.  7 ;  British  Argu- 
ment, pp.  9, 11.  See  also  Annex  B 
to  Ih'itish  Counter  Case. 


Considered  United  States  Coun- 
ter Case,  pp.  0,  20.  British  Case,  p. 
57;  British  Argument,  p.  9.  See 
also  .\t  iiex  C,  British  Counter  Cas  . 


^Ve  cite  Sir  H,  IMiillimore  and 
Lord  Kussell,  Sir  lloundell  Palmer, 
and  Sir  Alexander  Cockburn,  and 
Mr.  Canning,  iia  Great  Britain 
may  and  do  cite  Wheaton,  Story, 
Jelierson,  or  Washington.  Why 
not? — we  say  a  second  time.  We 
find  good  matter,  excellent  nuitter, 
in  these  documents. 

Considered  United  States  Case, 
pp.  402-406 ;  United  States  Coun- 
ter Case,  p.  11.  British  Counter 
Case,  pp.  119-123;  British  Argu- 
ment, p.  34. 


and  agencies  within  the  neutral 
terx'itory,  and  ha.;  direct  dealings 
there  with  neutral  citizens. 

(<*.)  The  argument  of  the  United 
States  as  to  the  liability  of  Great 
Britain  to  make  pecuniary  compen- 
sation to  the  United  States  if  she 
is  found  in  any  respect  to  luive 
failed  in  the  performance  of  her 
neutral  obligations,  and  as  to  the 
measure  of  damages,  and  the  prin- 
ciple applicable  thereto. 

II. — As  TO  FACTS  C;ENE]^ALL^  . 

(J.)  The  argutnent  of  the  United 
States  that  the  British  Foreign-En- 
listment Act  of  1819  contained  no 
provisions  of  a  preventive  elli- 
cacy,  bntwas  merely  of  a  punitive 
character. 

(A.)  The  argnmentative  compari- 
son between  the  British  Foreign- 
Enlistment  Act  and  the  Foreign-En- 
listment Act  and  Executive  powers 
of  the  United  States  and  those  of 
other  countries,  intended  to  show 
the  inferior  etlicacy  of  the  British 
statute. 

(/.)  The  suggestion  of  the  exist- 
ence of  prerogative  powers  in  the 
Crown  of  Great  Britain,  and  of 
powers  under  the  British  customs 
and  navigation  laws,  which  ought 
to  have  been,  but  were  not,  used 
for  the  maintenance  of  Her  Britan- 
nic Majesty's  neutrality. 

(m.)  The  alleged  admissions  of 
various  British  writers  and  states- 
men in  printed  books,  iiarliauient- 
ary  speeches,  and  otherwise,  of 
principles  or  facts,  assumed  to  be 
in  accordance  with  the  present 
Argument  of  the  United  States. 


(m.)  The  alleged  ditterences  be- 
tween the  conduct  of  France  ami 
other  countries,  and  the  conduct  of 
Great  Britain  in  the  observance  of 
neutrality  during  the  war. 

III. — As     TO    ERRONEOUS    VIEWS 
or  imiTISII  ARGUMENTS,  ETC. 


Considered  United  States  Case,        (o.)  The    assertion    that    Great 


hj,v;  . ,; 


AMERICAN    REPLY,    .ILNE    2S,    1872. 


383 


SEllALLV. 


pp.  2.i()-25(; 
ter  Case,  p.  ' 


United  States  C'oun- 
Hiitish  Case,  ]>.  L'-l. 


Consuleretl  United  States  Case, 
pp.  113-110.  IJritish  Counter  Case, 
pp.  8,  9. 


We  do  not  understand  that,  be- 
oanse  tbe  British  Government  re- 
fused to  discuss  this  point  in  its 
Connter  Case,  we  are,  therefore,  de- 
prived of  the  rifjht  to  discuss  it. 
Besides,  why  seek  for  re-arjjument 
on  a  ])oint  which  she  refused  to  dis- 
cuss t 


Considered  United  States  Coun- 
ter Case,  pp.  13-1(».  British  Case, 
pp.  2r)-29;  British  Counter  Case, 
pp.  25-47  ;  British  Argument,  pp. 

8,9. 


Britain  has  made  her  own  munici- 
pal legishition  the  measure  of  her 
international  obligations,  and  has 
pleaded  any  supposed  inefliciency 
of  her  laws  as  an  excuse  for  the 
non-perfornumce  of  such  obliga- 
tions, which  she  has  never  done. 

(p.)  Tiie  inference  that  because 
Great  Britain  has  thought  it  right 
to  legislate,  since  the  war,  so  as  to 
eularge  the  legal  control  of  her 
Government  over  certain  classes  of 
transactions  by  her  <;itizens,  calcu- 
lated to  lead  to  difficulty  with  for- 
eign I'owers,  she  has  tliereby  or 
otherwise  admitted  the  insuffici- 
ency f)f  her  laws,  during  the  civil 
war,  for  the  ])erforinance  of  her 
neutral  obligations. 

(q.)  The  manner  in  which  it  has 
been  thought  lit,  in  the  .argument 
of  the  United  States,  to  treat  the 
refusal  of  Great  Britain  in  her 
Counter  Case  to  enter  into  a)>j  de- 
tailed justification  of  her  Govern- 
ment against  the  imputation  of  in- 
sincere neutrality,  ami  unfriendly 
motives  toward  the  United  States, 
as  a  virtual  luPiiission  of  such  in- 
sincere neutrality  and  such  un- 
friendly motives. 

{>'.)  The  erroneous  representation 
in  the  same  argument,  of  the  pur- 
pose for  which  nunu'rous  historical 
instances  of  the  extension  and  per- 
sistent violation  of  the  neutral  or 
friendly  obligations  of  the  United 
States  toward  other  powers,  by 
citizens  of  the  United  States  act- 
ing contrary  to  their  laws,  have 
been  referred  to  in  the  Counter 
Case  of  Her  Britannic  Majesty's 
Government,  and  the  attempt  to 
escape  from  the  direct  bearing  of 
those  instances  upon  the  ques- 
tion, whether  the  views  of  the 
preventive  power  which  a  bellig- 
erent has  a  right  to  exact  from  a 
neutral  State,  and  of  the  measure 
of  the  due  diligence  with  which  it 
is  incumbent  upon  a  neutral  State 
to  use  its  preventive  powers,  in- 
sisted upon  by  the  United  States 
ii  the  i)resent  controversy  against 
Great  Britain,  are  historically  well 
founded,  or  politically  possible  or 


m 


I 


m. 


It.? 


;384  SUPPLEMENTARY    ARGIMEXTS    AND   STATEMENTS. 

consistent  with  tiie  practice  ;iiul 

experience  of  the  United  Stutos 

themselves,  who  have  appealed  in 

,  their  own  Case  and  Counter  Case. 

and  in  the  Ai)pendix  to  their  Couii 
ter  Case,  to  most  of  the  very  same 
transactions  (which  (Jreat  Ihitaiu 
is  now  alleged  to  have  improporly 
brought  forward)  as  actually  fur 
nishing  evidence  of  the  efficacy  of 
their  laws,  and  of  the  diligence  and 
good  faith  with  which  those  laws 
have  been  executed. 


IX.  In  conclusion,  we  respectfully  submit  to  the  Arbitrators  that  the 
sense  of  the  treaty  is  plain,  and  that  it  imperatively  forbids  any  sueli 
action,  direct  or  indirect,  as  is  proposed  in  the  Memorandum. 

In  preparing  their  arguments  the  Counsel  on  both  sides  considered  the 
(|uestion,  and  without  mutual  conference  they  both  came  to  the  same 
conclusion,  and  expressed  it  in  substantially  the  same  spirit,  with  differ 
ence  of  language  only.  In  the  expression  of  courteous  deference  to  the 
Arbitrators,  we  beg  the  Tribunal  on  this  point  to  look  at  page  1  of  the 
IJritish,  and  page  G  of  the  American  Argument. 

We  have  uot  discussed  here  the  argumentative  points  of  the  Memo 
randum,  as  we  might  well  have  done,  considering  all  siu;h  discussion 
inai)propriate  at  this  time. 

Finally,  we  need  say  little  on  the  <iuestiou  of  convenience;  but  we 
cannot  forbear  to  say  that  as  to  the  Arbitrators,  as  we  may  well  suppose, 
but  certainly  for  ourselves,  for  whom  alone  we  have  a  right  to  speak, 
prolonged  debate  involves  cares,  and  inconveniences  of  separation  from 
home  and  from  our  personal  and  professional  affairs,  which  do  not  ap 
ply  to  the  Counsel  of  the  British  Government. 

In  this  view  and  in  other  relations,  we  respectfully^  suggest  that  the 
Arbitrators,  if  they  need  elucidation  of  any  point,  should  propose  spe 
ciflcally  such  point  and  rcfjuire  Counsel  to  argue  viva  voce,  face  to  face. 
in  the  presence  of  the  Tribuiml. 

C.   Cl'SIIIN«. 

Wm.  M.  Evarts. 
.^r.  R.  Waite. 


(  -  -^n 


m ' 


iii-»; 


mm 


III -ARGUMENT  OF  SIR  ROUNDELL  PALMER  ON  THE  QUESTIONS 
OF  "DUE  DILIGENCE,"  THE  "EFFECT  OF  COMMISSIONS  UPON 
THE  INSURGENT  CRUISERS,"  AND  THE  SUPPLIES  OF  COAL 
TO  SUCH  CRUISERS  IN  BRITISH  PORTS." 

[Filed  July  21).— See  Piotocol  xv.] 


Chapter  I. 


-On  the  question  of  "due  diligence"  generally 
considered. 


When  tlie  inquiry  is,  whether  default  has  been  made  in  the  fidfdl, 
iiient  of  a  paiticuUir  ol)lij;ation,  either  by  a  state  or  by  an     ,.  „„  ,i,e  ,o„rc.,.« 

individual,  it  is  tirst  necessary  to  have  an  accurate  view  of  "'" ''''«''"<"'■ 

the  ground,  nature,  and  extent  of  the  obligation  itself. 

The  examination  of  this  question  will  be  simplified  by  considering- 
iii  the  first  instance,  such  a  case  as  that  of  the  Alabama,  at  the  time  of 
lier  departure  from  Great  Britain,  namely,  a  vessel  built  and  made 
ready  for  sea,  witli  special  adaptation  for  warlike  use,  by  BiitisU  sliip- 
builders  in  the  course  of  their  trade,  within  British  territory,  to  the 
Older  of  an  agent  of  the  Confederate  States,  but  not  armed,  nor  capa- 
ble of  offense  or  defense  at  the  time  of  her  departure. 

Any  obligation  whi(;h  Great  Britain  may  have  been  under  toward 
the  United  States,  in  respect  of  such  a  vessel,  could  only  be  founded,  at 
the  time  when  the  transaction  took  place,  (1)  upon  some  known  rule 
or  principle  of  international  law;  or  (2)  upon  some  express  or  implied 
eunagemeut  on  the  part  of  Great  Britain. 

The  three  rules  contained  in  the  Vlth  Article  of  the  treaty  of  Wash- 
ington become  elements  in  this  inquiry  solely  by  virtue  of  the  declara- 
tiou  made  in  that  article,  that — 

Her  Majesty's  government  cannot  assent  to  the  forej^oing  rules  as  a  statement  ot 
liriiieiples  of  international  law  which  were  in  force  i.t  tlie  time  when  the  claims  men- 
tioned in  Article  I  arose  ;  bnt  that  Her  Maj''sty's  government  *  *  *  aj^rco  that, 
indeciding  the  qnestions  between  the  two  countries  arising  out  of  those  claims,  the 
ailiitrators  should  assnmo  that  Her  Majesty's  government  had  undertaken  to  act  upou 
the  priiiciides  set  forth  in  those  rules. 

Ill  order  rightly  to  understand  the  effect  of  the  agreement  embodied 
in  this  declaration,  it  is  important  to  see  how  the  question  between  the 
two  <>overr.Mient8  would  have  stood  without  it. 

I. — As  to  the  rules  and  principles  of  international  lo.w. 

These  must  be  obtained  from  the  authorities  which  show  what  had 
ineviously  been  received  and  understood  among  nations  as 
to  the  obligations  of  neutral  states  toward  belligerents;  nnfi' pmlnnV,  rfli" 
leiiieinbering  always,  that  wdiat  is  called  international  law 
(in  the  absence  of  particular  compacts  between  states)  is  imposed  only 
[ity  the  moral  power  of  the  general  opinion  and  practice  of  civilized  na- 
tions; that,  (in  the  words  of  Lord  Stowell,  quoted  with  approval  by 
the  great  American  jurist,  Wheaton,  '^Histoire  des  Brogres  du  Droit 
[ties  Gens,"  vol.  i,  p.  134,)  "  une  grande  partie  du  droit  des  gens  est  bas()o 
|8url'u8uge  et  les  pratiques  des  nations.  Nul  doute  qu'il  a  ete  introduit 
25  0 


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386 


SUPPLEMENTARY   ARGU'IENTS   AND    STATEMENTS. 


par  (les  i)iincipes  g(5ii(''ranx,  (tin  droit  natnrel;)  mais  il  ne  marclio  avoc 
CCS  priiiciiK's  (juo  jusqnVi  mi  certain  point;  et  s'il  s'arrcte  a  cc  point 
Dons  ne  jionvons  pas  prctondre  aller  pins  loin,  et  dire  que  la  seiilo 
tbt'orie  };cn«''rale  ponrra  nous  soutcpir  dans  nn  i)rof?r«'S  nltcrienr." 

In  a  case  in  which  no  active  •  '.nference  in  war  is  imputed  to  a  neu- 
tral state,  international  law  «..iows  nothing  of  any  oblijiation  of  tliiit 
state  toward  a  belligerent,  as  such,  except  to  preserve  its  neutrality. 
To  constitute  a  merely  passive  breach  of  neutrality  on  the  part  of  such 
a  state,  some  act  must  have  been  done  by,  or  in  aid  of,  a  belligerent, 
for  the  pmposes  of  the  war,  which,  unless  done  by  the  permission  of 
the  neutral  state,  would  be  a  violation  of  its  territory,  or  of  its  sov- 
ereignty or  independen(;e  within  tliat  territory,  and  such  act  must  have 
been  exj)rcssly  or  tacitly  jjermitted  on  the  part  of  the  neutral  yovoni- 
ment.  For  acts  done  beyond  the  neutral  jurisdiction  by  subjects  of  tlie 
neutral  i)ower,  to  the  injury  of  a  belligerent,  the  law  of  nations  lias 
appropriate  remedies;  but  tliose  act.s,  involving  no  violation  or  liostile 
use  of  neutral  territory,  are  not  imputed  as  breaches  of  neutrality  to 
the  neutral  state.  And  for  a  violation  or  hostile  use  of  neutral  terri- 
tory without  the  permission  or  intentional  acquiescence  of  the  neutral 
state,  re[»aration  may  be  due  from  the  offending  belligerent  to  the  in- 
jured neutral,  but  the  neutral  so  injured  has  been  guilty  of  no  breach 
of  any  neutral  obligation  toward  the  other  belligerent,  whether  he  does, 
or  does  not,  subsequently  obtain  reparation  from  the  offender. 

Between  the  commercial  dealings  of  neutral  citizens,  in  what(?ver  kinds 
of  merchandise,  (and  whether  witli  the  citizens  or  with  the  governments 
of  belligerent  states,)  and  the  levying  or  augmentation  of  military  or 
naval  forces,  or  the  fitting  out  .ind  dispatch  of  military  or  naval  expe- 
ditions by  a  belligerent  within  neutral  territory,  international  law  has 
always  drawn  a  clear  distinction.  The  former  kind  of  dealings,  if  they 
are  permitted  by  the  local  law  of  the  neutral  state,  involve  on  the  part 
of  that  state  no  breach  of  Jieutrality ;  if  they  are  prohibited,  a  disregard 
of  the  prohibition  is  not  a  violation  or  hostile  use  of  the  neutral  territory, 
but  is  an  illegal  act,  the  measure  of  which,  and  the  remedies  for  wLicli, 
must  be  sought  for  in  the  municipal  and  not  in  international  law.  The 
other  class  of  acts  cannot  be  done  against  the  will  of  the  neutral  sov- 
ereign without  a  violation  of  his  territorj^,  or  of  his  sovereignty  and 
independence  within  that  territory ;  and  to  permit  this,  for  the  purposes 
of  the  war,  would  be  a  breach  of  neutrality. 

The  continuance  during  the  war,  within  the  neutral  territory,  of  trade 
by  neutral  citizens  with  both  or  either  belligerent,  in  the  i)roduceor 
manufactures  of  the  neutral  scate,  whether  of  those  kinds  which  (when 
carried  by  sea  to  a  belligerent)  are  denominated  contraband  of  war,  or 
of  any  other  description,  has  always  been  permitted  by  international 
law,  and  no  authority,  anterior  to  the  departure  of  the  Alabama  from 
Great  Britain,  can  be  cited  for  the  j)roposition  that  unarmed  ships  of  war, 
constructed  and  sold  by  neutral  ship-builders  in  the  course  of  their  trade, 
were,  in  the  view  of  international  law,  less  lawful  subjects  of  neutral 
commerce  with  a  belligerent  than  any  other  munitious  or  instruments 
of  war. 

The  authorities  on  this  subject  are  quoted  at  large  in  Annex  (A)  to 
the  British  Counter  Case.  Galiani,  one  of  these  authorities,  ar^^  iied  that 
the  sale  in  a  neutral  port,  to  a  belligerent,  of  a  ship  not  only  built  but 
armed  for  war,  ought  to  be  deemed  prohibited;  but  Lampredi,  Azuui,  and 
Wheaton  rejected  that  opinion,  and  Utid  that  (the  transaction  being  a 
conuuercial  one  on  the  part  of  the  neutral  seller)  the  addition  even  of 
au  armament  would  make  no  dififereuce.    Story  took  the  same  view  of 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


387 


tlie  dispatch  by  ji  neutral  citizen  of  a  ship  of  war  fully  armed  from  the 
neutral  territory  to  a  belligerent  port,  with  a  view  to  her  sale  there  to 
a  bellifterent  ]>ower.^  3[r.  Adams  himself,  in  insotlicial  correspondence 
with  Earl  Russell,  (April  0,  180;{,-)  admitted  the  st)undness  of  these 
doctrines,  assuming  the  transaction  of  sale  and  transfer  by  the  neutral 
to  be  "  purely  commercial ; "  and  also  assuming  the  belligerent  country, 
to  which  such  vessels  of  war  might  be  sold  and  transferred,  to  be  "  not 
subject  to  blockade."  It  cannot,  however,  be  seriously  imagined  that 
the  existence  of  a  blockade  of  the  ports  of  the  belligerent  purchaser 
would  make  such  a  transaction,  if  it  would  otherwise  be  lawful,  a  vio- 
lation of  the  neutrality  of  a  neutral  state,  in  the  view  of  international 
law. 

It  may  be  true  that,  when  an  armed  ship  of  war  is  sold  to  a  belligerent 
within  neutral  territory  and  goes  to  sea  from  thence  fully  capable  of 
offense  and  defense  under  the  control  of  the  belligerent  i)urchaser,  there 
would  often,  (perhaps  generally,)  exist  grounds  for  contending  that  the 
transaction  was  not  substantially  distinguishable  from  the  dispatch  of 
a  naval  expedition  by  the  belligerent  from  the  neutral  territory ;  and 
this  was  doubtless  a  cogent  reason  for  the  special  legislation  of  the 
United  States  and  of  Great  lUitaiu,  which,  (whatever  further  scope  it 
way  have  had,)  was  undoubtedly  intended  to  prevent  sueh  expeditions, 
by  striking  at  the  armament  of  ships  '>f  war  within  neutral  territory, 
fur  the  service  of  a  belligerent.  JJut  t  case  of  a  ship  leaving  the  neu- 
tral country  unarmed  is,  in  this  respect,  wholly  ditt'erent.  Her  departure 
is  no  operation  of  war ;  she  is  guilty  of  no  violation  of  neutral  territory ; 
she  is  not  capable,  as  yet,  of  any  hostile  act.  The  words  of  Mr.  ITus- 
kisson  in  the  debate  on  the  Terceira  expedition  in  the  British  Parliament, 
iHuskisson's  Speeches,  vol.  iii,  p.  559,)  and  of  Mr.  Canning,  as  there 
([uoted  by  him,  are  strictly  applicable  to  such  a  case,  and  deserve  reference 
as  showing  the  view  of  this  subject  taken  long  ago  by  those  eminent 
British  statesmen.  Speaking  of  certain  complaints  made  by  Turkey 
(luriug  the  Greek  revolutionary  war,  he  said : 

To  these  couiplaiuts  we  coiistiintly  replied :  "  W(!  will  preserve  onr  neutrality  witliiu 
our  dominions,  but  we  will  go  no  further.  Turktty  tlicl  not  unctorstiUiil  our  exphniii- 
tioii,  and  thouoht  we  niiglit  sunnnarily  dispose  of  Lord  C'<»chrfino,  and  those  other  siib- 
jicts  of  Her  Majesty  who  were  assisting  the  Greeks."  To  its  remonstrance  Mr.  Canning 
loplied  :  "Arms  may  leave  this  country  as  matter  of  merchandise  ;  and  however  strong 
tlie  general  inconvenience,  the  law  does  not  interfere  to  stop  them.  It  is  only  when 
llic  elements  of  armaments  are  combined  that  they  come  within  the  purview  of  i\'<- 
l.iw;  and,  if  that  combination  does  not  take  place  until  they  have  left  tliis  country, 
wc  have  no  right  to  interfere  with  th«>m."  Those  were  the  words  of  Mr.  Canning,  who 
ixttiuled  the  doctrine  to  steam  vessels  and  yachts,  that  might  aft(>rward  be  converted 
into  ves.sels  of  war,  and  they  appear  <j[uite  consistent  with  the  acknowledged  law  of 
nations. 

II. — As  to  an  express  or  implied  engagement  of  Great  Britain. 

Great  Britain  had  no  treaty  or  convention  with  the  United  States  as 
to  any  of  these  matters,  but  she  had,  in  1819,  for  the  ])rotec-    ;,  J,„,„„  „   e,. 
tion  of  her  own  peace  and  security,  and  to  enable  her  the  bet-  „^;;;",!m™t^''oi'''ore«t 
tir  to  preserve  her  neutrality  inca.se8of  war  between  other  '"'"" 
countries,  enacted  a  municipal  law  prohibiting,  under  penalties,  (among 

'Sir  U.  Philliniore,  in  vol.  iii  of  his  work,  (published  in  1857,)  rejeccs  the  distinction 
of  tlieso  writers  between  the  export  of  contraband  and  the  sale  of  the  same  kinds  of 
111  tides  within  the  neutral  territory.  But  ho  does  not,  of  course,  maintain  that  it  is 
pint  of  the  iuternutioual  duty  of  a  neutral  state  to  prohibit  or  prevent  dealings  iu  cou- 
tialiaiid  articles  by  its  subjects  in  either  of  the.so  ways. 

'  Aypeudix  to  Case  of  United  States,  vol.  i,  p.  b92. 


I.: 


.<-  ■ 


'  •  i  '     •' 


Hi" 
If  ;.::'i , 


ia' 


e 


388 


SUPPLEMENTARY   ARGUMENTS   AND   STATEMENTS. 


Other  things,)  "  the  equipment,  fnrnishin|;r,  flttinp;  ont,  or  arming  of  an" 
ship  or  vessel  within  British  jurisdiction,  witli  intent  or  in  order  that 
such  ship  or  vessel  slionld  be  employed  in  the  service  of  any  forcijnn 
Prince,"  (or  other  belligerent,)  "with  intent  to  cruise  or  coTuniit  hostili 
ties  against  any  Prince,  state,  or  potentate," &c., with  whom  Great  Britain 
might  be  at  peace.  Every  attempt  or  endeavor  to  do,  or  to  aid  in  doing-. 
any  of  these  prohibited  acts  was  also  forbidden ;  every  ship  or  vessel 
which  might  be  equipped,  or  attempted  to  be  equipped,  &c.,  contrary 
to  these  prohibitions,  was  declared  forfeited  to  the  Crown,  and  tlio 
officers  of  Her  Mnjesty's  customs  were  authorized  to  seize  and  to  prose- 
cute to  condemnation  in  the  British  court  of  exchequer  every  ship  or 
vessel  with  respect  to  which  any  such  act  should  be  done  or  attempted 
within  British  jurisdiction.  This  law  (which  was  called  the  Foreign-En- 
listment Act)  was  regarded  by  Her  Britannic  Majesty's  advisers,  not 
only  as  prohibiting  all  such  expeditions  and  armaments,  augmentation 
of  the  force  of  armaments,  and  recruitments  of  men,  as,  according  to 
the  general  laws  of  nations,  would  be  contrary  to  the  duties  of  a  neutral 
State,  but  also  as  forbidding  the  fitting  out  or  equipping,  or  the  special 
adai>tation,  either  in  whole  or  in  part,  to  warlike  use,  within  British  jn- 
risdiction,  of  any  vessel  intended  to  carry  on  war  against  a  Power  with 
which  Great  Britain  might  be  at  peace,  although  such  vessel  might 
not  receive,  or  be  intended  to  receive,  any  armament  within  British  Ja- 
risdiction  ;  and  although  she  might  be  built  and  sold  by  ship-builders  in 
the  ordinarj'  course  of  their  trade  to  the  order  of  a  belligerent  purchaser, 
so  as  not  to  offend  against  any  known  rule  of  international  law. 

It  has  never  been  disputed  by  Her  Majesty's  Government  that  when, 
at  the  time  of  the  breaking  out  of  a  war,  prohibitions  of  this 
"munwpni  klud,  excecdlug  the  general  obligations  of  international  law, 
exist  in  the  municipal  law  of  a  neutral  nation,  a  belligerent, 
who  accei»ts  them  as  binding  upon  himself  and  renders  obedience  to 
them,  has  a  right  to  exi)ect  that  they  will  be  treated  by  the  neutral 
Government  as  equally  binding  upon  his  adversary,  and  enforced  against 
that  adversary  with  impartial  good  faith,  according  to  the  principles 
and  methods  of  the  municipal  law,  of  which  they  form  part.  Oblijja- 
tions  which  are  incumbent  upon  neutral  nations  by  the  universal  prin- 
ciples of  international  law  stand  upon  a  much  higher  ground ;  as  to 
them,  a  belligerent  has  a  right  to  expect  that  the  local  law  sliould  make 
proper  provision  for  their  pevlormance;  and,  if  it  fails  to  do  so,  the 
local  law  cannot  be  pleaded  as  constituting  the  measure  or  limit  of  his 
right.  But  a  right  created  by  the  municipal  law  of  a  neutral  State 
must  receive  its  measure  and  limit  as  much  with  respect  to  any  foreign 
belligerent  Power  as  with  resi)ect  to  the  citizens  of  the  neutral  State  it 
self,  from  the  municipal  law  which  created  it.  Any  engagement  of  the 
neutral  toward  a  belligerent  State,  which  may  be  implied  from  the  e\ 
istence  of  such  a  law,  can  go  no  further  than  this.  And  if  to  this  is 
superadded  an  express  promise  or  undertaking  to  a[)ply  the  law  in  good 
faith  to  all  cases,  to  which  there  is  reasonable  ground  for  believing  it  to 
be  applicable,  that  promise  and  undertaking  leaves  the  nature  of  the 
obligation  the  same;  it  does  not  transfer  the  prohibition  or  the  riglitoi 
the  belligerent  with  respect  to  the  manner  of  enforcing  it  from  the  re 
gion  of  municipal  to  that  of  international  law. 

Accordingly,  the  Minister  of  the  United  States,  during  the  civil  war. 
constantly  api)lied  to  Her  Majesty's  Government  to  put  this  municij)al 
Ijiw  of  Great  Britain  in  force.  To  select  two  out  of  a  multitude  of  i" 
stances:  On  the  0th  of  October,  1802,  (soon  after  the  departure  of  tho 
Alabama,)  Mr.  Adams  sent  to  Earl  Kussell  an  intercepted  letter  from 


i.  KA 
liiliitory 
liiw 


BRITISH    SUrrLEMENTAL    ARGUMENT. 


389 


tlie  Confederate  Secretary  of  the  Njivy,  in  wliich  the  Fk»ri(hi  was  re- 
forred  to  "as  snbstantiatin;;:  the  aUejiations  made  of  infringement  of  the 
KiiUstment  Law  by  the  insnrgents  of  the  United  States  in  the  ports  of 
Great  Britain  ;"  and  added  : 

I  am  well  awuro  of  the  fact  to  which  your  Lordship  calls  my  attention  in  the  note 
of  the  4th  instant,  »  #  #  that  Her  Majesty's  (Jovt-nunent  are  uiniblr  to  jjo 
la-yond  the  law,  municipal  and  international  in  preventinj;;  entiM'prises  of  tlir  liind  re- 
teiTod  to.  l{ut  in  the  rejuesentations  which  I  have  had  the  honor  hitcly  to  make,  I 
lii'ij  to  remind  your  Lordsliip  that  I  hase  them  upon  evidence  whicii  applies  directly 
tuiufriufjements  of  the  municipal  law  itself,  and  uot  to  anything  boyond  it.' 

M\d  on  the  L'Dtli  of  September,  18({3,  writing  with  res[)eet  to  the  iron- 
clad rams  at  Birkenhead,  he  said : 

So  far  from  intinuvtinfj;  hostile  ])roceedin{5»  toward  Great  Hritain  unless  the  l.iw, 
wiiicli  I  consider  insuHicient,  is  altered,  [(inotiufj;  words  from  a  letter  of  Ear!  llnssell,] 
llio  burden  of  my  ar^jument  was  to  urjje  a  reliance  upon  tlie  law  as  sutlieient,  as  well 
I'nini  the  past  experience  of  the  United  States,  as  from  the  confidence  expressed  in  it  by 
the  moat  eminent  authority  in  this  kinj^dom.'- 

In  answer  to  all  these  applications,  Iler  Majesty's  Government  uni- 
t'orudy  undertook  to  use  their  best  endeavors  to  enforce  this  law,  and  to 
do  so  (notwithstanding  a  diversity  of  opinion,  even  ui>on  the  judicial 
Dench  of  Great  Britain,  as  to  its  interpretation)  in  the  comprehensive 
sense  in  which  they  themselves  understood  it,  not  only  by  penal  but  by 
preventive  measures,  (/.  e.,  by  the  seizure  of  any  offending  vessels  before 
their  departure  from  Great  Britain,)  upon  being  furnished  with  such 
evidence  as  would  constitute,  in  the  view  of  British  law,  reasonable 
ground  for  believing  that  any  of  the  prohibited  acts  had  been  committed 
or  were  being  attempted. 

When,  therefore,  Iler  Majesty's  Government,  by  the  sixth  article  of 
the  Treaty  of  Washington,  agreed  that  the  Arbitrators 
should  assume  that  Her  j\[ajesty's  Government  had  under-  .iNhAv'  aij'.'i 
taken  to  act  upon  the  principles  set  forth  in  the  three  Kules, 
though  declining  to  assent  to  them  as  a  statement  of  principles  of  inter- 
national law,  which  were  iu  force  at  the  time  when  the  claims  arose,) 
the  effect  of  that  agreement  was  not  to  make  it  the  duty  of  the  Arbitra- 
tors to  .judge  retrospectively  of  the  conduct  of  Her  Majesty's  Government 
according  to  any  false  hypothesis  of  law  or  of  fact,  but  to  acknowledge, 
as  a  rule  of  judgment  for  the  purposes  of  the  Treaty,  the  undertaking 
which  the  British  Government  had  actually  and  repeatedly  given  to  the 
Goveinmeut  of  the  United  States,  to  act  upon  the  construction  which 
they  themselves  placed  upon  the  prohibitions  of  their  own  municipal 
huv, according  to  which  it  was  coincident,  in  substance,  with  those  Rules. 

With  respect  to  these  three  Rules,  it  is  imi)ortant  to  observe  that  not 
one  of  them  purports  to  represent  it  as  the  duty  of  a  neutral  Govern- 
ment to  prevent,  under  all  circumstances  whatever,  the  acts  against 
which  they  are  directed.  The  first  and  third  Rules  recognize  an  obliga- 
tion (to  be  applied  retrospectively  upon  the  footing,  not  of  an  ante<;e- 
(lent  international  duty,  but  of  a  voluntary  undertaking  by  the  British 
Government)  "to  «se"  within  the  neutral  jurisdiction  ^' due  diligoice  to 
prevent^'  the  acts  therein  mentioned  ;  while  the  second  recognizes  a  like 
obligation  "wo^  to  permit  or  suffer''''  a  belligerent  to  do  certain  acts; 
words  which  imply  active  consent  or  conscious  acquiescence. 

HI — Principles  of  Law  relative  to  the  diligence  due  hy  one  State  to  another. 

The  obligatiou  of  "due  diligence,"  which  is  here  spoken  of,  assumes 
'  Brit.  App.,  vol.  i,  p.  216.  « Ibid.,  vol.  ii,  p.  ;578. 


I 


'J 


i  i 


I' 


"'-^^'.■J    '' '"'ttl-^^- 


390 


SUPPLEMENTARY    ARGUMENTS   AND    STATEMENTS. 


undor  tlio  first  7*ulo  oxpros.slv,  ami  niKU'i'tlie  tliird  bv  iiccox 
i>i,«iM,  iin.iirmvvimt  sjiiv  imi>liojitioii,  tiH>  oxistciice  ol  SI  " iciisoiiablo  ground  df 
boliof;"'  aiul  hotli  those  «'xi)rossioiis,  "<liuMlili<itMK'c"  imd 
"  roasonablo  fi'roiind  of  belief,"  must  be  uiulerstood,  in  every  ease,  with 
respect  to  Ibc  nature  of  the  thinj,'  to  be  prevented,  and  tlie  nieiuis  of 
prevention  with  whicli  the  neutral  Ooveriunent  is  or  ought  to  be  ])i(). 
vided.  When  the  obligation  itself  rests  not  u|»on  general  international 
law,  but  upon  the  undertaking  of  a  neutral  IJoverninent  to  enforce  in 
good  faith  the  provisions  of  its  own  legislation,  the  measure  of  duo  dili 
gence  must  m^cessarily  be  derived  from  the  rules  an«l  principles  of  that 
legislation.  When  the  obligation  rests  upon  the  more  general  ground 
of  international  law,  inasmuch  as  it  is  requisite  in  the  nature  of  tliin;is 
that  every  obligation  of  a  Government,  of  whatever  kind,  must  bo  per- 
formed by  the  use  of  the  lawful  powers  of  that  (lovernment  within  the 
sphere  of  its  proper  authority,  it  will  be  sufficient  if  the  laws  of  tho  neu 
tral  State  have  made  such  proper  and  reasonable  provision  for  itsfnllili- 
ment  as  is  ordinarily  practi<;able,  and  as,  under  the  conditions  proin'i 
for  calling  the  obligation  into  activity,  may  reasonably  be  expected  to 
be  ade(|uate  for  that  puri)ose;  and  if  upon  the  occurrence  of  the  omer 
gency  p  .  ^urse  is  had,  at  the  proper  time  and  in  the  proper  manner,  to 
the  means  of  prevention  provided  by  such  laws. 

Xothing  could  be  more  entirely  abhorrent  to  the  nature  or  more  incon- 
sistent with  the  foundations  of  what  is  called  international  law  than  t(t 
strain  it  to  the  exaction  from  neutral  Governments  of  things  which  aic 
naturally  or  politically  impossible,  or  to  the  violation  of  tlie  prinoiplis 
on  which  all  national  Governments  (the  idea  of  which  necessarily  pre 
cedes  that  of  international  obligation)  themselves  are  founded. 

It  will  be  convenient,  in  this  place,  to  examine  the  meaning  of  certain 
propositions  extracted  in  the  Argument  of  the  United  States 
from  Sir  Kobert  Phillimore's  work  on  international  law. 
which  were  certainly  not  intended  by  that  Jurist  to  be  un 
derstood  in  the  absolute  andunqualitied  sense  in  which  the 
Counsel  of  the  United  States  seem  desirous  of  using  them. 
It  is  proper  here  to  mention  that  Sir  Kobert  Phillimore,  the  author  of  that 
work,  wa.sappointed  Her  Britannic  Majesty's  Advocate,  in  the  room  of  Sir 
John  Harding,  in  August,  18(52;  and  tliat  with  respect  to  all  the  questions 
which  afterward  arose  between  the  British  Government  and  the  United 
States,  till  some  years  later  than  the  termination  of  the  war,  the  British 
Government  acted  under  his  advice,  which  must  be  presumed  to  have 
been  in  accordance  with  his  view  of  international  obligations.  That 
period  covers  the  ground  of  all  the  claims  now  made  by  the  United  States 
against  Great  Britain,  except  those  Avhich  relate  to  the  Sumter  and  the 
Nashville,  and  to  the  original  departure  of  the  Florida  and  the  Alabama 
from  Great  Britain. 

The  following  extract  (United  States  Argument,  page  20)  is  from  the 
Preface  to  the  second  edition  of  the  first  volume  of  Sir  R.  Philliiuores 
work,  (pp.  20-22:) 

Tliore  reuiiiiiis  one  niiestion  of  the  greatest  importance,  namely,  the  responsihiUlii  ol 
a  statv  for  the  acts  of  lier  citizens,  involvinj;  the  dnty  of  a  uentral  to  previnit  lunia- 
ments  and  ships  oi'  war  issninjf  from  her  shores  for  the  service  of  a  bellij^erent,  tlumuli 
such  armaments  were  furnished  and  sliips  were  oiiuipped,  built,  and  sent  without  tin; 
knowhHlgc  and  contrary  to  tho  orders  of  her  Government. 

The  question,  to  what  extent  tlui  State  is  responsibh)  for  the  private  acts  of  its  sn'i- 
jects,  {ciritasiic  dcliqitevil,  an  ciri)!*)  is  one  of  the  most  important  and  interesting  parts 
of  tlie  law  whicli  governs  the  relations  of  independent  States. 

It  is  a  maxim  of  general  law  that,  so  far  as  foreign  States  are  concerned,  the  will  I'f 
the  subject  must  be  considered  as  bound  up  in  that  of  his  Sovereign. 

t 


7.  The  in  a  X  i  m  « 
ritfd  by  th(.'  I'mted 
Sl.ritHH  (rnm  Sir  U. 
PhiHIniui*'.  on  the 
ijtH'sfntn.  '*  f'ifitiinnf 
tl  V  I  iq  H  t  lit,     a  n 


BRITISH    SUPPLEMENTAL    ARGUMENT. 


301 


e  sroiiiid  df 


It  if*  alwo  '1  inaxiiii  tlint  onch  Stato  has  a  riv:''^  tooxjuH't  tVoni  aiiotlior  tho  ()l>.sprvaiico 
of  iiitt'iiiatioiial  ohliKatimis,  without  vcjxanl  to  wluit  may  hf  thi-  iniiniciiial  moans 
whicli  it,  posHt'sst'H  (or  riiforoinj^  this  oiisfrvaiicc. 

Tilt'  act  of  an  imliviiliial  citizen,  or  of  a  small  nnmbcr  ofciti/cns,  isnot  to  Itc  iniinitcil 
\vitli()Ut  ch'ar  proof  to  the  (Jovcrnmcnt  of  whicli  they  an-  siilijccts. 

Atiovcrnmcnt  may  hy  knoHhihjc  ainl«/(//>')'rtii«', as  well  as  l>y  ilircci  pfniiisM'uni,  hcconio 
roHiioiisihlo  for  the  acts  of  snhjccts  whom  it  iloi.'S  not  previMit  from  tln^  (M)mmission  of 
auy  injury  to  a  foreij^n  State. 

A  Ooveinmcnt  is  jnesnined  to  bo  ablo  to  rcstmin  tho  subject  within  its  territory  from 
contniveninjj;  tho  olilijfationn  of  nt-utrality  to  which  the  Slate  is  bound. 

Upon  this  pas.sajjo,  which  eonplos  together  "armiiment.s  and  ships  of 
war,"  it  is  to  bo  observed,  in  the  first  place,  that  lliere  is  nothinfi;  in  it 
which  implies  any  ditl'erent  view  of  the  extent  of  tho.se  international 
ol)lij?ations  (as  distinct  from  its  own  mnnicipal  prohibitions)  by  which  a 
State  is  bonnd,  from  that  wliicli  is  sliown  to  have  been  established  by 
earlier  authorities.  Sir  K.  Phillimore  i.s  too  sound  a  Jurist  to  suppose 
that  any  private  opinion  of  a  particular  jnrist  could  impose  retrospec- 
tively upon  the  (Jovernmeiits  of  the  civilized  world  oblij»ations  not  pre- 
viously re(!Of(nized.  lie  does  not  detine  here  what  are  "the  obligations 
of  neutrality  by  which  the  State  is  bound;"  he  leaves  them  to  be  ascer- 
tained from  the  ])roper  sources  of  information. 

Next,  when  he  lays  it  down  as  a  maxim,  that  "each  State  lias  a  right 
to  ex[)ect  from  another  the  observance  of  international  obligations, 
without  regard  to  what  may  l)e  the  municipal  means  whi<!h  it  po.ssesses 
for  enforcing  this  observance,"  he  says  notliing  at  all  inconsistent  with 
the  proposition,  that  a  ueutral  State  will  have  observed  its  international 
obligations  with  due  diligence,  if,  having  provided  itself  with  muiucipal 
means  suitable  to  the  nature  and  character  of  those  obligations,  it  pro- 
ceeds to  use  those  means  in  good  faith,  on  the  proper  occasions,  and  in 
the  proper  manner,  though  (it  may  be)  without  succording  in  the  pre- 
vention of  everything  which  it  is  bound  to  endeavor  to  prevent.  The 
learned  author's  meaning,  and  the  kind  of  cases  which  he  has  in  view, 
are  apparent  from  the  reference  which  he  makes  in  the  foot-note  to  Part 
IV,  ch,  i,  of  the  same  volume,  where  he  di.scusses  the  doctrine  of  "inter- 
vention" in  the  following  terms: 

CCCXCII.  And  lir.st  of  all,  it  should  bo  clearly  understood  that  fhe  ivtcrvcnfion  of 
hodkn  of  men,  tirmcd  or  ^o  fc<;  «rni(r?,  uncommissioned  and  unauthoriztMl  by  tho  State  to 
which  they  beloii";-,  hi  a  war,  domestic  or  forei;fu,  of  another  State,  has  no  warrant  from 
international  law.  It  has  been  already  observed  (Section  CCXIX)  that  it  is  the  duty 
of  a  State  to  restrain  its  subjects  from  iiiradiiiji  the  territory  of  another  State;  and  tho 
(luestion,  when  mteh  an  aet  on  tlu!  jiart  of  subjects,  thou};h  unauthorize<l  by  tho  State, 
may  hriujr  ])enal  con.seciueuces  upon  it,  hiis  received  some  consideration.  It  is  a  (|Uos- 
tion  to  which  the  tfvents  of  modern  times  have  ,i;iven  j^rcat  importance,  and  as  to  which, 
durinf;  the  last  half-ceu^nry,  the  opinitms  of  statesnuMi,  especially  of  this  country 
(Great  Hritain)  have  nnderjjfone  a  nniterial  change.  That  this  duty  of  restraining  her 
HuUjects  is  incumbent  upon  a  State,  and  that  her  inability  to  execute  it  cannot  be 
alleged  as  a  valid  ext-use,  or  as  a  snilicient  detensc  to  the  inraded  State,  are  propositioim 
^yhit•ll,strenously  contcistedas  they  were  in  18)(!i,  will  scarcely  be  controverted  in  1870. 
The  means  which  each  State  lias  provided  for  tho  purpose  of  enabling  herself  to  fuUill 
this  obligation  form  an  interesting  part  of  jiublic  and  constitutional  jurispriHh'iice,  to 
the  province  of  which  they,  strictly  speaking,  belong.  This  question,  however,  borders 
closely  np(ui  tho  general  province  of  international  law,  and  upon  tho  particular  thcmo 
of  this  chapter. 

The  proposition  that  '^•a  Government  is  presumed  to  be  al)le  to  restrain 
the  subject  within  its  territory  from  contravening  the  obligations  of 
neutrality,  to  which  the  State  is  bound,"  is  properly  qualilied,  in  the 
immediately  preceding  context,  by  the  statement  that  "  the  act  of  au 
individual  citizen,  or  of  a  small  number  of  citizens,  is  not  to  be  imputed 
without  clear  proof  to  the  (xovernment  of  which  they  are  subjects,  and 
that  either  ^^ knoivlalge  and  sufferance,^''  or  "direct  permission,"  is  ueces- 


392 


SUITLKMKXTARY   AKGUMKNTS   AND   STATKMENTS. 


I  I 


!  ,i 


i^ '  ■ 


^f\  -•- 


ssiry  to  inako  a  GovoninuMit  loapoiisildo  for  the  acts  of  subjects  "  whom 
it  (loos  not  pnnt'iit  from  th«  coiiunission  of  injury  to  a  foreign  .State." 

Another  passajic,  l>earin<f  nnon  tliis  latter  point,  is  also  cited  in  Mic 
American  Argument,  from  volume  iii,  p.  218,  of  the  same  work  : 

In  fiict,  tlio  iniixiiii  lulvciti'd  to  in  a  former  voluino  of  thiH  wctrk  is  wmukI,  viz:  tlinta 
State  JH  piimafutic  rcsixinsihlt!  for  wluit(!ver  is  dono  within  its  jnrisdiction  ;  for  it  iiiiiHt 
J)«)  prvunilud  to  iif  ciipaldo  of  jtrcvontin;;  or  imniHliinj;  otftnisfs  ('onnnittefl  within  \\<^ 
Itoundnrit-s.  A  tfody  j)oIiti(!  is  tliiMi'loro  rositoiisililc  for  tlio  nets  of  individnalM,  wlijcli 
uro  (U'tx  of  iirliKtl  Of  uiciUtaUd  hontU'ity  toward  ti  nation  with  wiiicli  tin-  (ioviiriniiciit  of 
thcso  snl>j«!(rts  ]irof«'Hscs  to  nniintain  relations  of  fricndslii])  or  neutrality. 

The  passafi'c  in  a  former  volume  here  referred  to  is  in  the  chapter  on 
"  SeU' -Preservation,"  vol.  i,  part  3,  chap.  x.  This,  as  well  as  all  tlio 
other  passages  relied  on  by  the  United  States,  litis  reference  to  the 
onjanhatUm  ofhontlU'  crpeditions  against  ti  foreign  Power  in  it  neutral  or 
friendly  territory.  "  If"  (says  the  learned  author)  '•  the  hostile  exiiedi- 
tion  of  the  present"  (or  hite)  "Emperor  of  the  French  in  1842  Jigiiiiist 
the  existing  moiuirchy  of  France  had  tJiken  place  iclth  the  sanction  or 
connivance  of  the  IJuffliKh  Government,  Enghmd  would  have  been  guilty  of 
a  very  gross  violation  of  international  law  ;"  and,  after  .some  interveiiiiifi; 
renisirks  applicsible  to  "  nil  cases  where  the  territory  of  one  nation  is  inradal 
from  the  country  of  another,^''  he  refers  to  "a  very  important  chnptor, 
both  in  Grotius  and  in  his  commentator  Ileineccius,  (Mititled  ^  De  l\vm- 
rum  Communicatione,''  as  to  when  the  guilt  of  a  uialefjictor,  and  its  con- 
sequent punishment,  is  communicated  to  others  than  himself." 

"The  (piestion,"  he  proceeds,  "  is  particnhirly  considered  with  reference  to  the  respon- 
sibility of  a  State  for  the  ('(Midnct  •)f  its  citizens.  The  tests  for  discoverin<!;  'viriliisnc 
iUHqiivnt  an  civen^  are  laid  down  with  great  j)recision  and  nnaniniity  of  sentiment  !>> 
ull  pnhlieists,  anil  are  <i;enerally  ntdneed  to  two,  as  will  bo  seen  from  the  followiiii; 
extract  from  Biirlama(|ni,  who  rc^peats  the  opinion  of  (Jrotius  and  Ileincfccius."  '"In 
civil  societies  (lit!  says),  when  a  jtarticniar  mend)er  has  done  an  injury  to  a  stran;;('r, 
the  Governor  of  the  Commonwealth  is  somt'times  responsible  for  it,  so  that  war  may  lie 
declared  against  him  on  that  account.  But  to  ground  this  kind  of  imputation,  \vc 
must  necessarily  suppose  one  of  these  two  things,  sntl'erance  or  reception,  viz  :  citlier 
that  the  Sovereign  has  suffered  this  harm  to  bo  done  to  the  stranger,  or  that  iie 
afforded  a  retreat  to  the  i  riminal.  In  the  former  case  it  must  bo  laid  down  as  a  maxim 
that  a  Sovereign  who,  knowing  the  crimes  of  his  subjects — as.  for  examiile,  that  tlitjy 
practice  piracy  on  strangers — and  being  also  able  and  obliged  to  hinder  it,  does  not 
hinder  it,  renders  hinmeU"  criniimil,  bcicause  he  has  permitted,  and  conseiiuently  fin- 
nished  a  just  reason  of  war.  The  two  coiidilionn  aborc  mrntioned — /  mean  the  knowUdge 
and  nufferancc  of  the  Sorereign — are  ahuohitcly  necexmry,  the  one  not  being  suthcient  with- 
out tile  otlior  to  coinuumicato  any  share  in  the  guilt.  Now,  it  is  presumed  that  ;i 
Sovereign  knows  what  his  subjects  openly  andfreijuently  commit;  and  as  to  his  power 
of  hindering  tho  evil  this  likewise  is  always  presumed,  unless  the  want  of  it  bo  clearly 
proved." 

"SoVattel:  'Si  iin  souverain,  qui  ponrrait  retenir  ses  sn jets  dans  les  regies  do  la 
justice  et  de  la  paix,  sontfre  ([uMls  maltraitont  uuo  nation,  ou  dans  son  corps  ou  dans 
ses  niembrcc;  il  no  fait  pas  moius  do  tort  a  toute  la  nation  que  s'il  la  nialtraitait  liii- 
ineme.' 

"  Tho  act  01  an  individual  citizen,  or  of  a  small  number  of  citizens,  is  not  to  bo  inipn- 
ted,  wit;. 01. t  special  proof,  to  the  nation  or  Government  of  which  they  are  subjects.  A 
different  vale  would  of  course  .apply  to  the  acts  of  large  numbers  of  persons,  especially 
if  they  appeared  in  tho  array  and  with  the  weapons  of  a  military  force,  as  in  the  case 
of  the  invasion  of  Portugal,  which  has  been  referred  to  above." 

To  the  princii)les  of  these  extracts,  relating  as  they  do  only  to  hostile 
expeditions  or  the  invasion  of  territory  or  other  operations  of  war, 
organized  and  carried  ou  in  a  neutral  country  against  a  belligerent 
State,  with  the  knowledge  and  suflerance  of  the  neutnil  Government,  no 
just  exception  can  be  taken.  But  they  do  not  assert,  and  they  have  no 
tendency  to  prove,  that  the  con.struction  and  sale  of  an  unarmed  ship  of 
war  by  neutral  ship-builders  to  a  belligerent  within  neutral  territory  is, 
in  the  view  of  international  law,  a  "  hostile  expedition."  Upon  the 
question  of  the  due  diligence  required  from  a  neutral  Government  for 


nRITISlI    SUPrLEMENTAL   AKOUMENT. 


393 


inipii- 
jcts.  A 
oeeially 
;lie  case 

lostile 
war, 
gereut 
nt,  no 
ivc  no 
liip  of 
■ory  is, 
n  tbe 
>.ut  for 


tho  provcntion  of  tliost^  tliinijs  which  (when  tlio  rciinisito  kiiowhMlfjo  of 
tlu'ui  exists)  it  is  IxuiimI  to  (Mideavor  to  ])roveiit,  ami  for  which  it  will 
lieconu!  ivsponsililc  if  it  "  knows  and  siinV»rs  "  thcin,  they  throw  no  li<^lit 
Ih'VoihI  this:  Tliat  a  neutral  Government  is  presumed,  in  general,  to 
have  the  means  of  performing;'  its  international  obligations  ;  that  it  may 
also  ht^  presnnu'd  to  know  (and  to  suffer,  if  it  does  not  interfere  with 
tlu'Mi)  hostih'  acts  ()f  an  une(piivocal  character  done  within  its  territory 
by  large  numhers  of  |)ersons  without  disguise  or  concealment;  and,  on 
tlic  (itlier  hand,  t iiat  it  is  not  presumed  to  have  the  means  of  preventing, 
iiud  is  therefore  not  held  responsible  for  sutferiikg  tliose  things  (thougli 
(lone  by  its  citizens  to  the  injury  of  a  friendly  State)  ()f  whicli  it  cannot 
be  presumed  or  proved  to  have  liad  knowledge  ;  and  that  the  knowledge 
or  surterancc^  of  such  acts  on  the  i)art  of  inilividmil  citizens,  or  of  small 
numbers  of  citizens,  is  not  to  be  imi»uted  to  their  (lovernment  without 
positive  proof  of  such  kiu>wledge  and  sutforance,  in  each  [Kirticular  case, 
as  a  nuitter  of  fact. 

Tiiese  are  aiming  the  elementary  ju'inciples  on  whi(^h,  iji  the  present 
controversy,  the  Uritish  (Joverninent  relies.  Nothing  can  «  ^„,  „,,„  „„. 
be  further  from  the  truth  than  that  the  British  (Tovernment  ';:'^';ril^';:',^:'\ 
lias  ever  (as  is  repeatedly,  and  in  a  nuinner  not  free  from  "'"'i'" 
offense,  imputed  to  it  in  the  ArgunuMit  of  the  United  States)  "defended 
Itself  against  charges  of  wrong  by  setting  up  a  jilea  of  incapacity  to 
discharge  tiie  duties  of  a  sovereign  State."  It  has  always  maintained, 
and  it  still  maintains,  that  it  has  Justly  and  adequately  discharged  all 
those  duties.  Wherever,  in  this  controversy,  it  has  referred  to  the 
limitations  upon  its  own  power,  imposed  by  the  laws  of  (Jreat  Britain, 
from  which  its  existence  and  its  authority  are  derived,  it  has  done  so  iu 
strict  accordance  with  tho  principles  of  international  equity  and  Justice. 
Those  principles,  being  founded  on  the  laws  of  nature  and  reason  and 
the  received  usages  of  nations,  cannot  contemplate  the  i>erformance  of 
international  obligations  by  national  Governments  as  against  their  own 
I'ilizons  and  within  their  own  territory,  except  by  means  of  Just  and 
reasonable  general  laws  made  for  that  purj)ose,  and  by  the  proper  use 
of  the  legal  nu';vns  so  provided. 

Tiiose  principles  also  recognize  the  absolute  right  and  duty  of  every 
national  Go. ernment,  which  has  extended  the  prohibitions  of  its  o\^u 
municij)al  law  to  things  which  it  was  not,  by  international  law,  antece- 
dently bound  to  j)rohibit,  to  act  upon  those  municipal  laws,  as  constitu- 
ting, with  respect  to  such  matters,  the  just  and  tin;  only  measure,  as 
well  of  the  right  of  a  foreign  nation  seeking  to  have  the  benefit  of  them, 
as  of  its  own  powers  of  prevention. 

The  passage  in  Teteus's  work  ("  Considerations  des  Droits  Eeciproques 
de?  Puissances  Belligerantes  et  des  Puissances  Neutres  sur 
Mer")  cited  from  M.  lieddie's  English,  in  the  note  at  page  i.n. .."'to'muLipai 
-3  of  the  British  Counter  Case,  is  irrefragjibly  sound  and  ..'nt.t,.,i"„t''''i,'.Te,n"- 
J  list : 

It  is  a  wise  forcsi<?ht  for  neutral  Goveninients  to  obviate,  diirlnji;  war,  as  far  as  pos- 
sible, all  illegal  t'oiiduct  on  the  part  of  their  sahjects,  for  tho  double  advaiita^je  of  pre- 
serving them  from  risks,  and  of  preveutiug  the  suspicious  of  belligereuts  against  the 

trailers  who  sail  under  neutral  flags. 

»  ^  »  »  »  *  « 

What  neutrals,  however,  may  do  in  this  respect  does  not  arise  from  any  right  which 
iniiioses  on  them  the  obligation  of  maintaining  a  more  special  surveillance  over  their 
subjects  during  war  than  they  are  in  the  habit  of  doing  diiring  jieaee,  nor  to  exercise 
a  more  extensive  inspection  over  tho  legality  of  their  conduct  toward  belligerents 
tbau  that  which  is  prescribed  by  law. 

Fioin  neutral  Governments  not  being  nnder  an  obligation  to  obviate  the  abuses  of 
tlieir  subjects,  it  follows  that  belligerents,  wnatever  coudesceusiou  they  may  have  to 


1^1. 


f: 


Ih-:  ■■■•■■    ■'■_ 


WW 


394 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


m' 


expect  from  tliom  for  that  purpose,  nuniot  reasonably  require  tliem  to  extcml  tlicir 
measures  beyoud  wliat  is  in  practice  in  these  sauu-  neutral  countries  for  prevciiiinir 
frauds  lieinj;  com n)itte(l  ou  their  own  Customs,  and  for  cheekinj;  the  other  deceitful 
contrivances  for  evadiuj;  payment  of  the  revenues  of  the  State.  The  maxuuuni  of')iii'- 
caution,  in  this  case,  is  to  nniintain  an<l  enforrc  the  observance  of  neutrality  in  vessels 
and  carj^oes  with  the  sanH>  dilijrence  and  ex.utuess  as  are  exercised  in  in(|uiries  .'ind 
other  proceedinj^s  relative  to  taxes  or  imposts  and  Customs.  lie  who  does  as  niiicli  tn 
prevent  a  wronj;  meditated  a;j;ainst  another  as  he  does  for  his  own  protection,  siitisiies 
every  just  and  reas(uuii)h^  exi)ectation  on  the  part  of  that  other.  IVrhajis,  however, 
nu)re  mi^ht  be  done;,  if  it  were  wi.shed,  completely  to  attain  the  (diject.  Jn  tiiiicdi' 
war  special  instructions  mifrht  be  ordered;  tribunals  of  incpiiry  mij;ht  b(!  estiihljslieil 
afj;ainst  the  frauds  of  merchants  and  shii)-owncrs,  and  more  ri^^or  mij-'lit  be  shown  in  tlii- 
punishment  of  tlnir  delin?||neneies.  But  this  cannot  be  deniiinded  on  the  one  side ; 
and,  on  the  other,  it  mi^ht  be  diflicnlt  to  jfrant  it.  becau.se  ther(>  mif^ht  result  fnun  it 
consecjuences  inconsistent  with  the  }>;eneral  spirit  of  the  prohibitory  laws  of  the  State. 
At  least,  this  care  must  be  left  to  the  neutral  Governments,  to  whom  alone  it  beionirs 
to  jiulj^c  what  it  may  be;  proper  for  them  to  do  with  reference  to  the  circumstances  ei' 
the  war. 

rurtberinoro,  in  coiisideriiiff  any  question  of  "due  diligence"  on  tlic 
])art  of  ii  national  Governuient,  in  the  discharge  of  any  ot  jt.s 
duties,  it   is  unavoidably  necessary,  upon   those  yenoral 


10.  In(1uriir(>  npoti 
till'  (luistiim   dl'  ilili- 

i;'n'nV,',V,laVio'n"i  piiuci[)les  of  veasou,  and  of  the  practice  of  nations,  wbicli 

to 


Ociv.^rniiient.". 


are  the  foundations  of  international  law,  to  have  regard 
the  diversity  in  the  forms  and  Constitutions  of  different  Governmoiits. 
and  to  the  variety  of  the  means  of  operation,  for  the  performance  of 
their  public  duties,  resulting  from  those  various  forms  and  Constitii- 
tiotis.  Tlius,  it  is  .stated,  at  page  40  of  the  Argument  of  the  United 
States,  that  "in  the  United  States  it  was  necessary  to  impart  .such 
executive  powers"  (as  were  given  by  the  Acts  of  Ct)ngress  of  ITJlf,  1817. 
and  1818)  "  to  the  President ;  because,  according  to  the  tenor  of  our 
Constitution,  it  does  not  belong  to  the  President  to  declare  war,  nor  lias 
he  complete  and  final  jurisdiction  of  foreign  atfairs.  In  tdl  that  he  iiuist 
act  with  the  concurrence,  as  the  ca.se  may  be,  of  Congress  or  of  tlic 
Senate."  If  the  President  has  no  executive  ])<,)wer  in  the  United  States. 
except  what  is  conferred  upon  him  expressly  by  the  lawof  that  coiuitiy. 
it  is  equally  certain  that  the  Sovereign  of  Great  Biiiain,  and  the  various 
]\Iinisters  of  State  and  other  oflicers  by  whom  the  executive  ( iovermiioiit 
in  Great  IJrititin  is  carried  on  under  her  authority,  have  also  no  exoci 
tive  power  except  what  is  conferred  upon  them  by  British  law;  and 
that  (assuming  the  laws  of  both  tho.se  countries  to  make  just  and  roa 
sonable  provision  lor  tlie  fulfillment,  within  their  respective  jurisdictions, 
of  their  international  obligations)  the  question  whether  the  Govermiioiit 
has,  or  has  not,  a<!ted  witli  "due  «liligence"  in  a  i)arti('idar  ca.se,  is  oin' 
which  is  incapable  of  being  determined  aostractedly,  without  refonMico 
to  those  laws.  If  the  impiiry  be,  whether  the  juovision  which  tin' 
national  laws  have  made  for  the  performance  of  international  ol)li.ua- 
tions  is  in  fact  ju.st,  and  reasonal)ly  suflicient,  it  is  im[)ossible  rationally 
to  deny  that  principles  of  administration  and  rules  of  legal  ])roc(Mhiiv 
which  cx])erien('e  lias  proved  to  be  just,  and  reasoimbly  suflicient  tor 
all  the  great  purpo.ses  of  interi.al  government,  (the  primary  objects  tor 
which  all  Governments  exist,)  may  be  generally  adhered  to  when  tlit' 
legal  repression  of  acts  injurious  to  foreign  States  be(!omes  necessary. 
without  expositig  the  national  Governntent  which  relies  on  them  to  tlic 
imimtation  ot  a  want  of  due  diligence. 
Any  theory  of  diligence  in  the  i»erformancc  of  international  oblijr;!- 
tions  which  implies  that  foreign  Governments,  to  whoiiisiuii 
obligations  are  due,  owe  no  respect  whatever  to  the  distinc 
tive  Constitutions  of  national  Goveriunents,  or  have  a  rijilit 
to  (;all  for  tluiir  violation  in  particular  ca.ses,  or  to  dictate 
legislative  changes  at  \ariance  with  them,  would  be  fatal  to 


11.  Ohi.'i  tions  to 
niiy  thenry  itl'  tin* 
(litigi'm-e  tliu'  Ii'iuii 
iHMitruI  (i  II  V  !•  r  II  • 
lin'titj>.  w  li  1  r  h  in  ■ 
MiIvijM  a  iinivrr*al 
hyiMithi'^i^  III'  arln- 
liaiy  iiii'yiM-. 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


305 


iMice  "  oil  tlio 
'.  of  any  of  its 
lose  j^cnoral 
itioiis,  which 
ve  regard  to 
lovernmciits. 
if'orniance  of 
\\\{\  Constitn- 
)t'  the  United 
impart  .such 
of  17'.)4,181T. 
tenor  of  oiir 
'.  war,  nor  has 
tliat  he  iinist 
^ss  or  of  the 
inited  8tatos. 
tliateonntiy. 
(1  the  various 
(JovermiuMit 
80  no  excel, 
ish  hnv:  ami 
list  and  rca- 
urisdictioiis, 
(Joverniiieiit 
!•  case,  is  ow 
)ut  reforoneo 
which  tlie 
ional  ol)lii;;i- 
)le  ratioiiiilly 
al  proceihnv 
sutlicieiit  tor 
^,  objects  fov 
'to  when  till' 
es  necessary. 
I  them  to  the 


national  inde]>endenee;  and  (as  no  great  Power  conld  tolerate  or  submit 
to  it)  would  tend,  not  to  establish,  but  to  subvert  the  ix'ace  and  amity 
of  nations.  In  the  words  of  the  British  Summary,  (page  U,  see.  30,)  "its 
teiuleney,  if  admitted,  would  be  to  introduce  a  universal  liy[H)thesis  of 
absolute  and  arbitrary  i)o\ver  as  the  rule  of  judgment  ior  all  sueli  inter- 
national controversies."  The  practical  falseiiood  of  such  a  hypothesis, 
as  applied  at  the  present  time  to  the  two  nations <mi.o;i god  iu  the  present 
controversy,  to  the  three  nations  which  furnish  the  Judges  of  that  con- 
troversy, and  to  most  of  the  other  civilized  nat.'ons  of  the  world — its 
probably  universal  falsehood  as  to  every  lOnropean  and  American  State 
hi  the  not  remote  future — is  perhaps  not  the  gravest  objection  to  it.  it 
is  at  variance  with  all  the  iiighest  princi[>les  of  progress,  of  advancing 
hberty,  and  of  extended  civilization,  which  distinguish  modern  society. 
If  the  dreams  of  some  politicafphilo.sopiiers  could  be  accomplished,  and  if 
all  the  nations  of  the  earth  cculd  be  united  iu  one  great  federation 
uuder  the  most  perfect  imaginable  political  C(Uistitution,  tlu^  riglits  both 
of  particular  States,  and  of  individual  citizens,  and  all  (juestions, 
whether  as  to  the  represvsion  and  prevention,  or  as  to  the  i)unishmentof 
uiiLawful  acts  by  States  or  citizens,  would  certainly  be  determined,  not 
by  arbitrary  power,  but  by  fixed  ami  known  laws  and  settled  rules  of 
procedure.  Is  it  conceivable  that  it  should  enter  into  the  mind  of  man 
(nay,  of  citizens  of  one  of  the  freest  States  in  the  world,  whose  whole 
history  is  a  refutation  of  such  a  doctrine)  that  practical  iiiii)ossibilities, 
which  (if  they  were  possible)  would  be  hostile  to  the  highest  interests 
and  intelligence  of  mankind,  can  be  demandecl  by  one  State  of  another, 
in  the  name  of  international  law  ? 

IV. — On  the  preventive  poivcrfi  of  the  Laics  of  Great  Britain. 

There  are  several  pas.sages,  in  the  Argument  of  the  United  States, 
which  apjiear  (A)  to  contend  that  the  Eoyal  Prerogative  in  i^.  i,,^  A™>„m-,it 
Great  Britain  actually  extends,  under  the  British  Con.stitu-  "'  -i"'' '''•'■' 
tion,  to  a  power  of  summary  and  arbitrary  control,  v»  ithout 
legal  procedure,  over  the  persons  and  iirojierty  of  its  citi- 
zens, when  there  is  any  ground  to  suppose  that  such  citizens  may  be 
about  to  act,  or  that  such  proi)erty  may  be  about  to  be  employed,  in  a 
manner  hostile  to  a  foreign  belligerent  Power,  with  which  Her  ^lajesty 
is  at  peace;  and  (B)  to  assume  that,  if  such  a  prerogative  power  does 
not  actually  exist  under  the  British  Constitution,  the  very  fact  of  its  ab- 
sence is  proof  of  a  defect  of  British  law,  in  itself  amounting  to  an  abne- 
gation of  tlic  use  of  due  diligence  (or,  what  is  the  same  thing,  to  a  want 
of  the  means  of  due  diligence)  for  the  prevention  of  such  a(!ts. 

Q'here  are,  also,  other  passages  which  assert  (C)  that  "(Ireat  Britain 
pretends  that  punitive  law  is  the  measure  of  neutral  duties ;"  while  (D) 
"all  other  (lovernments,  including  the  United  States,  prevent  peril  to 
the  national  peace  by  means  of  ])r(Mogative  force,  lodged,  by  imidied  or 
express  constitutional  law,  in  the  hand  of  the  Executive,"  (page  37., 

These  arguments  require  to  be  severally  examined. 

(A.)  The  following  passages  embody  the  American  argument  us  to 
the  prerogative  power,  supposed  by  it  to  be  actually  vested  ,;,  n.  ..Bnn.nt. 
iu  the  Crown  of  (Ireat  Britain  : 


M  r.'h;nir(*  on  Pn-r'tii- 
iiliv.*,    li.r    due    dill. 


11-*  til  pr.T  '«  n  1 1  v  H 
[mw.-rn  !)'•  onuiiiR  to 
till    lliili»h  Ciown. 


(1.)  We  liiid,  oil  tlio  most  t-ur.soiy  obsorvatiou  of  tho  Constitutioii  of 
Grnit  Hiituiii.  that  the  dcelanvtiou  of  war,  tho  roiiclusinn  of  peace,  the  coiuliict  >f  for- 
•MK"  ati'iiiis,  that  all  these  thiiij>«  aro  In  Great  Britain  elements  of  the  prerogative  of 
till'  Crown. 

W(>  cannot  iMiliovo.  and  do  not  eonced(\  that  in  all  those  {jrtir.ter  preroKativ^o  powers 
there  is  not  included  tho  lesser  one  oi' pnvintiHg  imauthorizod  private  persons  fromeu- 


m 


I- 


wvm 


.1  ! 
11  i 


ll 


il 


4 


m 


^  .*«»'■' 


-I! 


306 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


{jajjing  in  privato,  war  af^ainst  a  friendly  foreign  State,  and  thns  connnittiii<;  Groat 
Britain  to  cannes  of  public  w.ir  on  the  part  of  such  foreign  State,  (j)ages  '2^.  •27).) 

(2.)  The  whole  lioily  oi  the  powers,  suitable  to  the  regulation  and  niaintcnaiipo  of 
the  relations  of  Great  Britain,  ud  extra,  to  ot'.'.'r  nations,  is  lodged  in  the  ]»r(".ogativc  of 
the  Crown.  The  intercourse  of  peac<',  the  decdaration  and  jiroseention  of  wmi.  tlio 
proclamation  and  observance  of  neutrality,  (whichlast  is  but  a  division  of  the  general 
subject  of  international  relations  in  time  of  war,)  are  all,  under  the  British  Constitu- 
tion, administered  by  the  Koyal  Prerogative. 

Wo  refer  to  the  debates  in  Parliament  upon  the  Foreign-Enlis' ment  Bill  in  18]!>,  imd 
on  the  ])roposition  to  repeal  the  Act  in  IH'i:?,  and  *^'>  the  debate  npr)n  the  Foreign  Hiilist- 
nient  Bill  of  187(t,  (as  cited  in  Note  B  of  t!io  Api>ei.dix  to  this  \rgument,)  as  a  dear 
exhibition  of  this  doctrine  of  the  British  Constitution,  in  the  aistinetion  betwe(>ii  tlio 
Executive  power  to  pcfi'edt  violations  of  international  duty  by  the  nation,  througii  tlit> 
acts  of  individuals,  and  the  pnnitke  legislation  in  aid  of  such  power,  which  needed  to 
proceed  from  Parliament. 

Wo  refer,  also,  to  the  actual  exercise  of  this  Executive  power  by  the  Government  of 
Great  Britain,  without  any  enabling  act  of  Parliiinieut  to  that  end,  in  various  public 
acts  in  the  course  of  the  transactions  now  in  judgment  before  the  Tribunal. 

1.  The  Queen's  Proclamation  of  Neutrality,  May  I'X  1801. 

2.  The  regulations  issued  by  the  Government  of  Her  Britannic  Majesty  in  regard  to 
the  reception  of  cruisers  and  their  prizes  in  the  i)orts  of  the  Empire,  June  1,  l-Til— 
June  2,  1865. 

-i.  The  Executive  orders  to  detain  the  Alabama  at  Quecnstown  and  Nassau.  August 
2,  1862. 

4.  The  Executive  orders  to  detain  the  Florida  at  Nassan,  August  2,  1802. 

5.  The  Ex<'cutive  orders  to  detain  the  rams  at  Liverpool,  October  7,  180;5. 

0.  The  debate  and  vote  in  Parliament  justifying  the  deteut'')U  of  the  rams  by  the 
Government  "on  their  own  respoiisiI»ility,"  February  2:?,  180t. 

7.  The  tinal  decision  of  Her  Majt.'sty's  Governnnuit  in  re.,  .d  "'o  Tuscaloosa,  as 
oxp*essed  by  the  Duke  of  Newcastle  to  Governor  Wodehou^  "•  > :  .  llowiug  words: 
•'If  the  result  of  these  inquiries  had  been  to  prove  that  the  ,tsst  t  ,  -s  really  an  uu- 
condemneil  prize,  brought  into  British  waters  in  violation  of  Her  Majesty's  orders 
made  for  the  jturpose  of  maintaining  her  neutrality,  T  consider  that  the  mode  of  pn)- 
ceeding  in  such  cireiimstances  most  consistent  with  Her  Majesty's  dignity,  and  most 
proper  for  the  vindication  of  her  ttrritorial  rights,  would  have  b-ien  to  prohibit  tlie 
exercise  of  any  further  control  over  the  'I'usealoosa  by  the  captors,  and  to  retain  that 
vessel  under  Her  ^Majesty's  control  and  jurisdiction,  imtil  properly  reclaimed  by  Irt 
original  owners."'    November  4,  18l3;{. 

8.  The  Execnfiv((  order  that,  "  for  the  future  no  ship  of  war  belonging  to  either  of 
the  belligerent  Powers  of  North  America  shall  be  allowed  to  enter  or  to  riinniin,  or  to 
be  in  any  of  Her  :Majestv's  ports  for  the  puriiose  of  being  disnuintled  or  sold."'  Sep- 
tember 8,  18ti4. 


9.  The  fiii.il  Executive  orders  to  retain  the  Shenandoah  in  port  "by  force,  if  neces- 
sary,''and  to  "forcibly  seize  her  upon  the  high  seas."     September  and  Oitober,  i^fi.'), 

10.  Tlie  rej'ction  l>y  Parliament  of  the  section  of  the  new  Foreigu-Enlistuifnt  liill, 
which  jtrovided  for  the  exclusion  from  British  ports  of  vessids  which  had  Iv-cm  fitted 
out  or  dispatched  in  vi(dation  of  the  Act,  as  reeonimended  by  the  Report  of  t-'.  Il'nal 
Commission.  This  rejection  was  moved  by  the  Attorney-General  and  made  'i^'  i'.iili.i- 
nient,  on  the  nieie  ground  that  this  jHiwer 'could  be  exercised  by  Order  in  »'     ritii. 

That  these  acts  were  understood  by  the  (Joveriunent  of  Great  JA!»a';  t<  ■  .  t  itpon 
the  luerogative  and  its  proper  exercise,  is  apparent  from  the  responsibi  <■,  :  i;  'i  c^ 
the  Law  Oftieers  given  upon  lifting  occasions,  (pages  :$2:}-;{25.) 

Tlioso  passa^-es  oxliibit  a  very  strange  contusion  of  ideas,  bet  .' •:  '  . 
prerooativc,  of  the  JJritish  Crown,  as  ie|)resenting  tlie  llritisli  natiCii  in 
its  external  relations  towards  foreign  Towers,  not  subject  to  its  laws, 
and  its  means  of  control  within  its  own  territory  over  its  own  citizens 
or  coniinorant  subjects,  its  relations  to  whom  are  created  and  detinei'  by 
those  laws.  The  declaration  of  war  and  peace,  or  of  neutrality  in  a 
foreign  war  ;  the  issuing  orders  and  regulations  as  to  the  reception  of 
foreign  cruisers  or  their  prizes  in  British  ports  j  the  exi  .ioo  of  control 
over  loreign  belligerent  vessels  or  prizes  (as  in  the  sup^  ^-^v'i  i  ,i:-oof  the 
Tuscaloosa)  brought  into  British  ports  by  a  belligerent  Po„"  "  "frary 
to  Iler  Majesty's  otders  and  regulations;  the  exclusion  of  it;r  ^i  '»*^'- 
ligerent  vessels  from  being  brought  into  British  ports  to  be  dismantletl 
or  sold,  or  from  being  brought  into  such  jwrts  at  all,  if  originally  littnl 
out  or  dispatched  from  British  :-rritfnv  iu  violation  of  British  law;  the 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


307 


iissau,  August 


seizure  of  a  foreign  vessel,  (as  in  tlie  supposed  case  of  the  Shenaiuloali,) 
if  found  committing  depredations  on  the  high  seas,  after  tl>c  belliger- 
ency of  the  Power,  by  which  she  was  commissioned,  had  ceased;  all 
these  are  acts  within  the  former  category,  concerning  the  (external  rela- 
tions of  Great  Britain  towards  foreign  Powers,  not  subject  to  British 
law  or  to  British  national  jurisdiction. 

Tlie  Executive  orders  to  detain  the  Alabama  at  Quoenstown  and  Nas- 
sau, the  Florida  at  Nassau,  .and  the  rams  at  Liverpool,  were  on  the  other 
haiul  all  issued  by  virtue  of  the  powers  with  which  the  British  (Jove.n- 
nient  was  armed  against  its  own  subjects  by  British  municipal  law,  (viz, 
by  the  Foreign-Enlistment  Act  of  1819,)  and  not  by  virtue  of  any  actual 
or  supposed  prerogative  of  the  (Jrown. 

The  words  used  by  the  ]>ritish  Attoniey-General  in  Parliament,  on  the 
23(1  of  February,  18(54,  with  reference  to  the  detention  of  the  rams  at 
Dirkenhead,  (or  to  the  preliminary  notice  that  they  would  be  seized  if 
any  attempt  were  made  to  remove  them,)  have  been  several  times  quoted 
iu  the  American  Argument.*  Those  words  were,  that  the  (ioverument 
had  given  the  orders  in  question,  "  on  their  own  responsibility."  But 
this  does  not  mean  that  the  orders  given  were,  or  were  supi)osed  to  be, 
founded  on  any  other  autli^rity  than  the  powers  of  seizure  given  by  the 
Foreign-Enlistment  Act ;  to  which  reference  had  been  expressly  made,  as 
the  authoiity  for  wiiat  was  done,  in  a  letter  to  the  Law-Ollicers  dated 
October  11),  ISC).'},  also  quoted  at  page  331. 

Those  orders  were  lU'cessarily  given  upon  the  responsibility  of  the 
Executive  Government,  on  whom  the  burden  was  thrown,  by  the  Foreign- 
Knlistnient  Act,  of  first  taking  possession  of  an  oll'ending  vessel,  in  any 
case  in  which  they  might  have  n^asonable  ground  for  belief  that  the  law 
was,  either  by  actor  by  attempt,  infringed ;  and  afterwardjustitying  what 
they  ha<l  <lone  by  a  regular  judicial  proceeding  for  the  condemnation  of 
tliat  vessel,  in  the  proper  Court  of  Law.  Exactly  the  same  language  had 
t)een  used,  by  the  same  Law-Ottieer  of  the  British  GovernnuMit,  wlien  So- 
Hcitor-General,  in  a  previous  debate  on  the  seizure  of  the  Alexandra, 
(21  April,  18().'{,  Hansard's  Debates,  vol.  clxx,  pp.  7r»(),  752.)  After  ex- 
liressly  saying  that  "  in  this  case  everything  had  been  done  according 
to  law,"  he  added,  "  it  was  our  duty,  upon  having  j)rima-faci<;  evidence 
wliich,  in  our  judgment,  came  up  to  the  requirements  of  the  clause,  to 
seiz.'  the  ship  Oi'  vessel,  ac(!ording  to  the  form  of  proceeding  under  the 
Ciuitonis  Acts.  There  is  lu)  other  \\  ay  of  dealing  with  the  ship ;  you  can- 
not stop  the  ship  by  going  before  a  nmgistrate;  it  must  be  done  upon 
the  resjionsibility  of  the  Government ;  an<l  so  it  has  been  done.*' 

Tlie  fundamental  princii)les  of  liritish  Constitutional  Law,  relative  to 
this  branch  of  the  Argument,  will  be  found  in  all  theelemen- 
tavy  works  on   that  subject.    T  le  subjoined  extmcts  are 
troni  Stephen's  edition  of  BlacksUme's  Commentaries  : 

It  is  cxpifssly  deeliU'O'l.  hy  Statutes  12  and  1'.?,  William  III,  cap.  2,  tliat  the  law8  of 
Kii^rliiiid  arc  the  l)irtiiiij;lit  (.*'  tlio  peo)  1(>  thereof;  and  all  the  Kin<j;s  and  (Queens  who 
S'IihII  ascend  the  ♦-hiDiie  of  this  ri,i!ui  oni;ht  io  administerthe  (ioveniniciit  of  the  saine 
aicoidiiiff  to  tlu^  said  laws;  and  all  their  oUicers  and  ministers  oiii;iit  t(»  serve  them 
I'i'spectively  aeeordinu;  to  the  same.     (Vol.  ii,  p.  4'21,  (itli  edition.) 

Sii'.ce  th(!  law  is  in  England  the  siii»reme  arbiter  of  every  man's  life,  liberty,  and 
lir<i|ii  rty,  Conrts  of  .Inutiee  nmst  at  all  times  be  open  to  the  snbjeet,  and  the  law  l)o 
•Inly  administered  therein.     (Ibid.,  p.  50.').) 

Tiie  law  of  nations  *  *  is  a  system  of  rules  established  by  tniiversal  consent  among 
tiic  civilized  inhabitants  of  the  world.  »  »  »  As  none  of  these  (imlependent)  States 
«ill  allow  a  .superiority  in  the  other,  therefore,  neither  can  dictate  nor  presirribi.'  the 


U.  Til.'  Ini.-  il.x- 
tiiiii'  ii  -  1  ..  til  ■ 
(inwtTf  (it*  llir  t'niwn 
iimliM"  ]l^tti^h  l;t\v. 


it 


Pages  25,  lol,  &c. 


HffW^ 


398 


SITPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


if  i. 


w 

m 

■  («  : 

si:- 


x-i'Hv   111    :in  ((  finni 
(itil. Hellion    oil    t  h  i 


rules  of  this  l.iw  to  the  le.st;  hut  such  nUes  iiiiiHt  neeeasarily  result  from  those  prin- 
ciples of  natMiiil  justice  in  which  all  the  learued  of  every  nation  ajj;rce,  and  to  whidi 
all  civilized  States  have  ass<>nted.  In  arbitrary  States,  this  law,  wherever  it  coiitru- 
»licts.  or  is  not  i»rovid<'d  for  by,  the  uiuuicii)al  law  of  the  country,  is  enforced  liy  the 
Koyal  power  ;  hut,  since  in  England  no  Koyal  i)ow«'r  can  introduce  a  new  law,  or  sus- 
pend th(^  execution  of  the  old,  then-fore  the  law  of  nations,  whene\er  any  (iiicstion 
arises  which  is  luojierly  the  snl)ject.  of  its  jurisdiction,  is  here  adojited  in  its  fnll  extent 
by  tlie  coniniou  law,  and  held  to  be  the  law  of  tIk!  land.  Hence  those  Acts  ef  I'arljji- 
lueut  which  have  ironi  tinu;  to  time  been  made  to  enforce  this  universal  law,  or  to 
facilitate  the  execution  of  its  decisions,  are  not  to  be  considered  as  iutroductive  of  anv 
new  rulP,  but  uk  rely  as  declarat«»ry  of  the  old  fundamental  constitutions  of  this  kinj;- 
tlom,  without  which  it  must  cease  to  be  a  part  of  the  civilized  world.  *  *  *  ^\,7i 
iv,  pages,  SOi,  ;»):?.) 

With  ro.spo(;t  to  the  particular  question  of  tlte  power  of  the  Ilritish 
Crown  to  prevent,  by  virtue  of  its  prerogative,  the  buikliiig  of  ships  of 
war  for  foreign  Powers  within  its  <loininioi^^\,  the  law  of  Great  Britain 
was  authoritatively  explained  as  long  ago  as  ITiil. 

lu  Michaelmas  vacation,  1721,  (says  Fortescue,  in  his  Reports,  page  3'*.'*,)  the  Jnd^vs 
■were  ordered  to  attend  the  House  of  Lends  concerning  the  liuilding  of  ships  of  force  lor 
foreigners ;  and  the  question  the  Lords  asked  thti  Judges  was,  whether  by  law  His 
Majesty  has  a  power  to  pndiibit  the  building  of  shijts  of  war,  or  of  great  force,  for  t'or- 
eiguers,  in  any  of  His  Majesty  s  dominions  If  And  the  Judges  were  all  o'.'  <ji»inion,  ex- 
cept Uaron  Mouutague,  (Chief  Justice  Pratt  delivering  their  opinion,)  tiiat  the  Kin;; 
iiad  no  ))ower  to  prohibit  the  same  ;  and  declar  .1  that  Mouutague  said  he  had  fornnil 
lion  thereon.  Tiiis  question  was  asked  on  the  occasion  of  ships  built  and  sold 
I,.  Jzur  being  comi)laiued  of  by  the  Minister  of  Sweden.    Trevor  and  Parker  gave 

the  (    aie  opinion  in  17i;5. 

(B.)  In  the  following  passages  of  their  Argument,  the  Atneriian  Conn- 

ir>.  The  Aineriran  '^^^'l  ai>i)ear  to  coiitend  that  the  British  Government  must  be 

deemed  to  have  been  wanting  in  due  diligence  beeause  tlu'y 

])roeeeded  by  law,  and  not  by  suspension  of  law,  or  by  pie- 

rogativc  witliout  law. 

(1.)  Apart  from  otiu-r  and' direct  proofs  of  iiermissiou,  or  knowledge  and  sutferancc, 
the  responsibility  for  any  injury  is  tixed  on  the  local  Sovereigu,  if  he  dc-pend  on  niinii- 
cii»al  nu'ans  of  enforcing  the.  observanct;  of  international  obligations,  instead  of  aetiii;; 
preventively  to  that  end  in  his  prerogative  cajtacity  as  sovereign.     (P.  '■i:).) 

(2.)  The  next  great  faihne  of  Great  liritain  to  use  di(C  diUijinvc  to  pirrciit  the  viola- 
tiou  of  its  neutrality,  in  tiui  nuitters  within  the  jurisdiction  of  the  tribunal,  is  sliown 
in  its  entire  omissicm  to  exert  the  direct  Executive  authority,  lodged  in  the  Koyal  Pre- 
rogative, to  iutercept  the  ]>r(!parations  ami  outlits  of  the  offending  \essi'ls.  and  tlic 
contributory  provisio)is  of  armauu'ut,  uiimitions,  and  men,  which  were  emitted  tVoni 
various  ports  of  the  I 'uited  Kingdom.  We  do  not  lind  in  the  Hritish  Case  or  Counter 
Case  any  s'  t  lous  contentiou,  but  that  such  powers  as  pertain  to  the  Prerogative,  in  tlio 
maintenance  of  intcrnatiomvl  relations,  and  are  exercised  as  such  by  other  great 
I'owers,  would  have  prevented  the  escape  of  every  one  of  the  ottV'iuling  vessels  emitted 
from  British  ports,  and  preclmled  the  subsidiary  aids  of  warlilce  equipnu'iit  and  siip- 
)dies  which  set  them  forth  and  kept  them  on  foot  for  the  maritime  hostilities  which 
they  nuiintained.     (Page  1()5.) 

(;i.)  Tlie  British  Miuisters  do  u<»t  scruple  to  suspeml  the  privileges  of  the  writ  of 
hahian  eor^/i/v,  whetlu'r  with  or  without  i)revious  parliamtintary  authorization,  and 
Avhether  in  the  United  Kingdom  or  in  the  Coh)uies,  on  occasion  of  petty  acts  of  relicl- 
liou  or  rev(»lt ;  that  is,  in  the  case  oi'  domcutic  war;  a  fortiori,  they  should  and  may 
arrest  and  prevent  suttjects  or  conuuoraut  foreigners  engaged  in  the  couimissiou  of  acts 
of  foreign  war  to  the  prejudice  of  another  Goveruiueut.     (P.  25.) 

The  answer  to  these  arguments  has  been,  in  substanee,  anticipated; 
but  with  respect  to  each  of  them,  a  few  further  remarks  may  not  bo 
supertluous. 

With  respect  to  the  first,  it  is  difficult  to  understand  whether  tlie 
Counsel  for  the  United  States  mean  to  intply  (in  the  face  of  the  admis- 
sion as  to  the  lindtation  of  the  powers  of  their  own  President  to  siicli 
authority  as  was  expresslj*  conferred  upon  him  by  the  Acts  of  Congress 
of  1701,  1817,  and  1818,  which  is  found  at  page  27  of  their  Argument) 
that  the  Tresident  of  the  United  States  has  a  ''  prerogative  capacity  as 
Sovereigu,'"  by  which  he  can  "act  preventively,"  or  that  he  does  uot 


BRITISH    SUPPLKMENTAL    AKGIIMENT. 


399 


iidopoiul  upon  niuiiicipal  means"  for  tlieeiifoiceiiioiitofsncliiiitornational 
ol'i;;'ati()ns  as  are  now  in  question  with  Oreat  IJritain.  liOj^al  powers 
(.'Oiiterrcd  upon  the  President  of  the  United  States  by  Aets  of  Congress 
lor  tlie  perfornianee  of  international  obligations,  are  as  much  "  muni- 
cipal means"  as  legal  powers  conferred  upon  the  Soven'ign  of  Great 
Ihitain  by  an  Aet  of  the  British  Parliament,  for  the  like  puri)ose. 

With  respect  to  the  second  passage,  it  is  to  be  observed,  that  it  not 
only  imputes  as  a  want  of  due  diligence  the  abstinence  frou)  the  use  of 
arbitrary  i)owers  to  supply'  a  sui)posed  detitnency  of  legal  i)owers,  but 
it  assumes  that  the  United  States  has  a  right,  by  international  law,  to 
expect  Great  liritain  to  ])revent  the  exportation  from  her  territory  of 
what  it  describes  as  "contributory  provisions,''  arms,  munitions,  and 
"subsidiary  aids  of  warlike  e(]uipment  and  supplies,"  though  such 
elements  of"  annaments  v.ere  uncombined,  and  were  not  destined  to  be 
combined,  within  British  jurisdiction,  but  were  exported  from  that  terri- 
tory under  the  conditions  c"  ordinary  exports  of  articles  <;ontraband  of 
war.  For  such  a  pretension  no  warrant  can  be  found  either  in  inter- 
uational  law,  or  in  any  municipal  law  of  (Jreat  Britain,  or  in  any  one 
of  the  three  Kules  contained  in  the  Ylth  Article  of  the  Treaty  of 
Washington. 

The  third  passage  reipiires  more  particular  attention,  because  it  pre- 
sents, in  51  particularly  striking  manner,  a  radically  falsf.  assumption, 
which  pervades  many  other  portitnis  of  the  United  States  Argument, 
viz,  that  the  acts  done  within  British  jurisdiction,  which  (rreat  Britain 
is  said  not  to  have  used  due  diligen(;e  to  prev(Mit,  were  ^'- Hctn  of  icin'" 
by  British  subjects  or  comnKU-ant  foreigners  against  the  United  States, 
justifying  and  calling  for  sinnlar  means  of  repression  to  those  which 
inijiht  be  necessary  in  a  case  of  "  rebellion  or  revolt,  /.  c,  of  domestic 
war." 

It  is  imi)ossible  too  i)ointedly  to  deny  the  truth  of  this  assumption, 
or  too  positively  to  state  that,  if  any  military  or  naval  ex-  „,,,„.  urui^i, 
peilitions,  or  any  other  acts  or  operations  of  war  against  the  '/Hmn'm,' T,«r;r;m, 
United  States,  in  the  true  and  i)roper  sense  of  those  words,  .',',',;i  ;,',V',i  i'',',',''.'r';ii 
liad  been  attempted  within  ]>ritish  territory,  it  would  not  !,',';;,  ';;'''>"„'"„ .t'llm 
have  been  necessary  for  the  E  itish  Government  either  to  "'^"i'i't''^"t"'-5- 
suspend  the  Habeas  (Jorpus  Act  or  to  rely  on  the  Foreign  Enlistment 
Act,  in  order  to  enable  it  to  intercept  and  prevent  by  force  such  ex|)edi- 
tions  or  such  acts  or  operations  of  war.  The  whole  civil  police,  and  the 
whole  naval  and  military  forces  of  the  British  Crown  would  have  been 
lawliilly  available  to  the  Executive  Government,  by  the  common  law  of 
the  realm,  for  the  prevention  of  such  proceedings.  But  the  fact  is,  *hat 
nothing  of  this  kind  ever  happened  or  was  attempted,  <luring  the  civil 
war  in  the  United  States,  in  Gieat  Britain,  or  in  any  of  the  British 
Tossessions,  exce[)t  (in  the  year  1803-'(U)  in  some  of  the  liritish  North 
American  Provinces;  and,  when  such  attempts  were  made  in  those 
provinces,  the  powers  of  thecommon  law  were  at  once  put  in  force  for  their 
rejiression,  untl  were  strengthened  by  special  and  extraordinary  legis- 
lation ;  nor  is  any  complaint  now  made  by  the  GovernnuMit  of  the  United 
States  of  any  want  of  due  diligence  on  the  ])art  of  the  British  North 
American  authorities  in  that  respect.  Not  only  was  no  military  or  naval 
expedition  and  no  aet  or  operation  of  war  ever  attempted  elsewhere 
within  British  territory  against  the  United  States,  but  (unless  the  arm- 
ii'gof  the  Florida  at  Greeu  Cay,  in  the  Baluunas,  be  an  exception)  no 
attempt  was  ever  made  in  any  other  iuirt  gf  the  British  dominons,  so 
much  as  to  equip  or  dispatch  for  the  Confederate  service  any  armed 
vessel,  by  which  the  question  whether  it  had  or  had  not  the  character 


f. 


i 

's 


"A 

I 


^ 


fillff- 


l?s, 


■li- 


m 


■  ■ii. 


400 


SLTPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


m{   III"  friitfil   St;it)* 
tlliit      ((Tfilt     lll'ililiii 

iiiid    u»l  nil  lucvii, 
livi;  liivv,  (li5p|-ijV('il. 


of  a  naval  expedition  prohibited  by  international  law  might  have  becii 
raised. 

(C.)  The  next  propositions  are,  that  "  Great  Britain  alone  pretomis 
ir.  Thp  .,»,riimi  that  pnnitive  law  is  the  measure  of  neutral  duties*' — tliat 
tl«e  powers  vested  in  the  Executive  Governnu'Ut  of  Grout 
Britain  by  the  Foreign  Eidistrnent  Act  of  1810  were  punitive 
oidy,  and  not  preventive — and  that  (D)  "  all  other  Govern. 
ments,  including  the  United  States,  prevent  peril  to  the  national  peace 
through  means  of  prerogative  force,  lodged,  by  implied  or  express  con- 
stitutional law,  in  the  hands  of  the  Executive." 

It  is  necessary  to  notice,  in  passing,  (with  reference  to  the  points  (A) 
and  (B,)  already  dealt  with,)  the  fallacy  here  introduced  by  the  imiJioiter 
use  of  the  term  "  prerogative  force,"  to  signify  definite  legal  powers, 
vested  by  law  in  the  Executive  Government  of  a  nation.  Siuih  is  not  the 
sense  in  which  the  word  "prerogative"  is  used  in  Great  Britain;  nor 
does  it  appear  to  be  that  in  which  it  is  used  in  tlie  parts  of  the  Ameri- 
can Argument  already  dealt  with. 

The  answer  to  proposition  (C)  is,  simply,  that  it  is  without  foundation 
in  fact.  Great  Britain  has  never  pretended  that  pnnitive 
powlr ..rihriirTi'ilh  law  is  tlie  measure  of  neutral  duties  ;  it  is  not  true  that  tlie 
;.w  ex,,  amid.  pQ^yers  vcstcd  lu  thc  Executive  Govern  »nent  of  Great  Britain 
by  the  Foreign  Eidistment  Act  of  1819,  were  punitive  only  and  not  pre- 
ventive. If  the  powers  given,  by  the  Acts  of  Congress  already  men- 
tioned, to  the  President  of  the  United  States,  can  witii  any  propriety  of 
language  be  described  as  powers  to  "  prevent  peril  to  the  national  peace 
by  means  of  prerogative  force,"  the  same  description  is  equally  appli- 
cable to  the  powers  given  to  the  Executive  Government  of  Great  Britain, 
by  the  Foreign  Enlistment  Act  of  1819. 

That  Act,  as  already  noticed,  prohibited  under  penalties  the  equipment 
or  armament  of  ships  for  foreign  belligerent  service;  the  augnientation 
of  the  warlike  force  of  foreign  ships  of  war ;  and  the  enlistment  or  recrnit- 
mentof  men  for  foreign  belligerent  service.  It  prohibited  also  any  attempt 
or  endeavor  to  do  any  of  those  acts — the  prohibition  as  to  ships,  &c.,  being 
r'»stricted  to  acts  done,  or  attempts  made,  within  British  jurisdiction. 
So  far  as  this  Act  imposed  penalties,  it  nas  of  course  punitive.  But  it 
was  preventive  also,  (for  which  reason  it  struck  at  attein[)ts  and 
endeavors,  as  well  as  acts) — and  prevention  was  the  main  i)urpose  for 
which  it  was  passed,  as  appears  from  the  preamble,  which  recites,  that 
the  laws  pre\'iously  in  force  "  were  not  sutticiently  effectual  for  prevent- 
ing the  prohibited  acts." 

These  i)reventive  powers  are  contained  in  the  fifth,  sixth,  and  seventh 
sections.  The  fifth  and  sixth  sections  authorized  the  Executive  Govern- 
ment, in  any  part  of  the  British  dominions,  upon  receiving  informatou 
on  oath  of  tlie  violation  of  the  provisions  against  enlistment  by  persons 
ou  board  any  vessel  within  British  jurisdiction,  to  detain  such  vessel, 
and  prevent  her  froui  proceeding  to  sea  on  her  voyage  with  the  persons 
so  unlawfully  enlisted  ou  board;  and  also  to  detain  her  until  certain 
penalties  had  been  paid,  if  her  commander  had  been  jirivy  to  the  un- 
lawful enlistment.  The  seventh  section  authorized  any  otWcer  of  Cus- 
toms or  Excise,  or  any  other  officer  of  the  British  nav}',  hy  law  empowered 
to  make  seizures  for  any  forfeiture  incurred  under  any  of  the  laws  of 
Custonisor  Excise  or  the  laws  of  trade  and  navigation,  to  seize  any  ship 
or  vessel  equipped  or  armed,  or  attempted  to  be  equipped  or  armed, 
contrary  to  its  provisions,  in  such  places  and  in  such  manner,  in  which 
the  same  officers  respectively  would  be  empowered  to  make  seizures 


^ 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


401 


itaiii :  nor 


under  the  Laws  of  Customs  or  Excise,  or  under  the  laws  of  trade  and 
navi<,'ation. 

The  powers  of  seizure  (to  be  followed  afterward  by  proceedinj?s  in  the 
Court  of  Exchequer  for  tlie  condemnation  of  the  vessel)  which  from  1800 
to  1S()G  were  available  for  the  purpose  of  prevention  under  this  statute, 
iire  contained  in  section  223  of  the  British  Customs  Law  Consolidation 
Act  of  185;J,  and  in  section  103  of  the  Merchant  Shipping  Act  of  18o4. 
IJy  section  223  of  the  Customs  Act,  power  was  given  to  any  ofticer  of 
IlVr  Majesty's  Navy,  duly  employed  for  the  prevention  of  smuggling, 
iiiid  on  full  pay,  or  rny  otlicer  of  Customs  or  Excise,  to  seize  or  detain, 
ill  any  place,  either  upon  land  or  water,  all  ships  and  boats,  and  all 
(joods  whatever,  liable  to  forfeiture.  By  section  103  of  the  Merchant 
Shipjiing  Ace,  i)ower  was  given  to  any  commissioned  officer  on  lall  pay 
in  the  naval  service  of  Her  Majesty,  or  any  British  officer  of  Customs, 
to  seize  and  detain  any  ship,  which  might,  cither  wholly  or  as  to  any 
sliare  thereof,  hav(!  becomt-  liable  to  forfeiture  under  that  Act. 

The  papers  before  the  Arbitrators  contain  several  instances  of  the 
employment  of  otlicers  in  Her  Majesty's  naval  service,  both  at  Liver- 
pool and  at  Nassau,  for  the  execution  of  duties  connected  with  the 
ent'on^ement  of  these  laws.  Li  most  cases  those  duties  were  intrusted 
ill  i)ractice  to  the  officers  of  Her  Majesty's  Customs ;  but  the  whole 
naval  force  of  the  British  Kingdom  might,  in  case  of  need,  have  beeji 
lawfully  employed,  within  British  jurisdiction,  in  aid  of  those  ofMcers. 
When  the  Georgia  was  reported  to  have  gone  to  Alderney,  a  British 
ship  of  war  was  sent  there  after  her;  and  if  the  commander  of  that 
ship  had  found  her  in  British  waters,  and  had  ascertained  the  existence 
lit' any  grounds  warranting  her  detention,  she  would  have  been  undoubt- 
edly detained  by  him.  Whenever  evidence  was  forthcoming  of  an 
actual  or  contemi)lated  illegal  equipment  of  any  vessel  within  British 
jurisdiction,  there  was  ample  preventive  power  under  these  statutes. 
Without  such  evidence,  no  rule  of  international  law  gave  a  foreign  State 
the  right  to  re(piire  il:at  anj- vessel  should  be  preventc  1  from  leaving 
the  British  dominions. 

The  United  States  have  referred,  in  their  Argument,  to  the  question 
raised  as  to  the  interpretation  of  the  British  Foreign-Enlist- 
ment Act  before  the  English  Court  of  Exchequer,  in  the  case 
of  the  Alexandra,  and  to  the  opinion  in  favor  of  its  more 
restricted  construction,  whi(!h  prevailed  in  that  case;  the 
judges  being  equally  divided,  and  the  right  of  appeal  being 
successfully  contested  on  teclinical  grounds.  But  in  another  case  (that 
of  the  Pampero)  a  Scottish  Court  of  equal  authority  adopted  the  more 
extended  construction  upon  which  the  British  Government,  both  before 
and  after  the  case  of  the  Alexandra,  always  acted ;  and,  as  no  vessel 
was  ever  employed  in  the  war  service  of  the  Confederate  States,  which 
was  enabled  to  depart  from  Great  Britain  by  reason  of  this  controversy 
as  to  the  interpretation  of  the  Act,  it  would  seem  to  be  of  no  moment  to 
the  present  inquiry,  even  if  it  had  related  to  a  point,  as  to  which  Great 
Britain  owed  some  antecedent  duty  to  the  United  States  by  inter- 
national, as  distinguished  from  municipal,  law.  But  the  controversy 
(lid  not  in  fact  relate  to  any  such  point.  There  was  no  question  as  to 
the  (ioraplete  adequacy  of  the  provisions  of  that  Statute  to  enable  the 
British  Goverament  to  prevent  the  departure  from  British  jurisdiction 
of  any  warlike  expedition,  or  of  any  ship  equipped  and  armed,  or  at- 
tempted to  be  equipped  aiid  armed,  within  British  jurisdiction,  for  the 
IHirpose  of  being  employed  to  cruise  or  carry  on  war  against  the  United 
States.    The  sole  question  was,  whether  the  language  of  the  prohibition 

26  c 


19.  The  dnuhtlnl 
points  as  to  the  .  <ir.- 
Htnictinn  (d'  tlu'  IJr.t- 
i>h  Ki)rf-iRU  En!i.-'- 
int'iit  Act  levt'r  jtl- 
H'cle.l  the  diljBemv 
(if  tlie  British  Gt,\- 
ornnif-nt. 


L':f: 


W^ 


i  .V  ii 


mi 


402 


SUPPLEMENTARY   ARGUMENTS   AND   STATEMENTS. 


foniprelieiided  a  ship  built  and  speciallj'  adapted  for  warlike  purposes 
but  not  .armed  or  cjipable  of  offense  or  defense,  nor  intended  so  to  be, 
at  the  time  of  her  departure  from  I>riti.sh  jurisdiction.  All  the  ju(l<;es 
were  of  opinion  that  the  departure  of  such  a  ship  from  neutral  teni- 
tory  was  not  an  act  of  war,  was  not  a  hostile  naval  expedition,  and  was 
not  prohibited,  inter  genten,  by  general  interimtional  law  ;  aiid  two  of 
them  thought  that,  not  having  any  of  those  characters,  it  was  also  not 
within  the  prohibitions  of  the  Statute;  while  the  other  two  were  of 
opinion  that  the  existence  of  those  characters  was  not,  under  the  words 
of  the  law.  a  necessary  elenjent  in  the  municipal  offense. 

The  language  of  Baron  Jbamwell,  an  eminent  Ihitish 


20.  Hnroii  It  r(i  m* 
well's  vifw  of  the  in- 
tf'riiuttoii.il,  It!*  (li.s- 
linct  trout  niiitiiripal 
oliligatioii,  iiu  I'r  c'll 
with  thi\l  of  I  lie 
Aliiericiin  Attoniuy- 
tii-inTiil  in  1H(I. 


Judge,  (afterwards  a  nieniber  of  the  British  Neutrality 
Laws  Commission,)  explains  clearly  and  forcibly  the  vie\v 
of  the  case,  as  it  would  have  stood  umler  international  law 
only,  which  was  taken  by  the  entire  Court : 

If  wo  look  at  the  rights  and  the  oblij^atioiis  created  by  inteniatioual  law,  if  a  hos- 
tile expedition,  litted  ont  by  a  State,  leaves  its  territory  to  attack  another  Slate,  it  is 
war;  so  also,  if  the  expedition  is  litted  ont,  not  by  tlu)  State  bnt  witli  its  snU'crjiiuc, 
hy  a  part  of  its  snbjeets  or  stranj^ers  within  its  territories,  it  is  war,  at  least  in  the 
option  of  the  assailed.  They  would  be  entitled  to  say,  either  yon  can  prevent  this  or 
yon  cannot.  In  tlie  former  case  it  is  yonr  act,  and  is  war;  in  the  latter  case,  in  .sclt- 
defcnse  we  must  attack  yonr  territory,  whence  tliis  assanlt  on  ns  proceeds.  Anil  tliis 
is  (Hiually  true,  Avhether  the  State  assailed  is  at  war  or  at   peae»'  with  all  the  world. 

The  riju;ht  in  peace  or  war  is  not  to  be  attacked  from  the  territory  of  aiiotln'r  Stiitc ; 
that  that  territory  shall  not  bo  the  basis  of  hostilities.  Bnt  there  is  no  internationiil 
law  forbiddiufi;  the  supply  of  contraband  of  war;  and  an  armed  vessel  is,  in  my  judj;- 
ment,  that  .and  uothinjf  nn)ie.  It  may  leavts  tiie  neutral  teriitory  niuler  the  sanu' tiiii- 
ditions  as  the  materials  of  which  it  is  nnide  mifflit  do  so.  Tiio  State  intennted  in 
stoppin}5  it  must  stop  it  as  it  would  other  contraband  of  war,  viz,  on  the  hi<j;ii  seas. 

Not  onlj'  is  the  doctrine  thus  stated  conformable  to  all  the  autliori 
tiesof  international  law,  to  which  reference  has  been  made  in  the  earlier 
])art  of  this  paper,  but  the  same  doctrine  was  officially  laid  down  hy 
Mr.  Legare,  then  Attorney  General  of  the  United  States,  in  Deceiiiboi', 
1841,  when  advising  his  (jovernment  that  two  schooners  of  war,  built 
and  fitted  out,  and  about  to  be  furnished  with  guns  and  a  niilitiuy 
equipment,  in  New  York,  for  Mexican  service  against  Texas,  ouyht  to 
be  treated  as  offending  against  tiie  Act  of  Congress  of  1818.    lie  says: 

The  policy  of  this  country  (the  United  States)  is,  and  ever  lias  been,  perlV'ct 
neutrality,  and  non-interference  in  the  quarrels  of  others.  But,  by  the  law  of  iiiitious, 
that  neutrality  may,  in  the  matter  of  furnisliing  military  supplies,  be  preserved  by 
the  two  opposite  systems,  viz,  either  by  furnisliing  both  parties  with  perfect  inipiu- 
tiality,  or  by  furnishing  neither.  For  the  former  branch  of  the  alternative  it  is  supei- 
flnous  to  cito  the  language  of  publicists,  which  is  express,  and  is  doubtless  familial  to 
you.  If  you  sell  a  ship  of  war  to  one  beU'Kjcrciit,  the  othei'  has  no  right  to  complain,  no  long 
as  you  offer  him  the  same  facility.  The  law  of  nations  allows  him,  it  is  true,  to  confismk 
the  vessel  as  contraband  of  war,  if  he  can  take  her  on  the  high  seas ;  hut  he  has  no  ijromiA 
of  quarrel  with  you  for  furnishing  or  attempting  to  furnish  it.  But,  with  a  full  knowkdg') 
of  this  undoubted  right  of  neutrals,  this  country  has  seen  fit,  with  regard  to  ships  of  wai, 
to  adopt  the  other  branch  of  the  alternative,  less  prolitabl©  with  a  view  to  conimeieo, 
hut  more  favorable  to  the  preservation  of  a  state  of  really  pacilic  feeling  within  iier 
borders.  She  has  forbidden  all  furnishing  of  them,  under  severe  penalties.  (British 
Ai^peudix,  vol.  v,  p.  360.) 

V. — On  the  jtreventive  potcers  of  the  Laics  of  Foreign  Countries. 

(D.)  It  now  becomes  necessary  to  observe  upon  the  proposition,  tbat 
"all  other  Governments,  including  the  United  States,  pre- 
nu^'t  ""s  n,  Le""!':  vent  peril  to  the  national  peace  through  means  of  preroga- 
iwaT.M'i.^X'In  tive  force,  lodged  by  implied  or  express  constitutional  law 
foreign  i«w».  .^^  ^j^^  bauds  of  the  Executive."    in  other  words,  a  general 

want  of  diligence  is  sought  to  be  established  against  Great  Britaiu, 


m 


3. 

3  purposes, 
(d  HO  to  be, 
the  ju(l{;e8 
.'utral  teni- 
311,  aiul  was 
iiiUl  two  of 
ras  also  not 
:\vo  were  of 
r  the  words 

ent  British 

Neutrality 

•ly  the  view 

latioaal  law 


1  law,  if  a  lios- 
licr  State,  it  is 
I  its  siitVcviuu'r, 
iit  It'iist  ill  tlic 
prevent  tliis  or 
er  case,  in  srlf- 
.■(■ds.    Anil  this 

\11  tllO  Wdllll. 

iiii(»tl>»>r  Stiitc ; 
lo  international 

is,  in  my  jiulj;- 
•v  tlie  sanu'  (.'oii- 
t.e  intercHtLMl  in 
he  bijj;li  seas. 

the  authoii- 
iu  the  earlier 
lid  down  by 
n  December, 
of  war,  built 
a  military 

IS,  GUJiht  to 

He  says: 

been,  perl'oet 
law  of  nations, 

preserved  by 
perfect  iiiipai- 
tive  it  is  super- 
less  familiar  to 
•omplahi,  no  long 
'rue,  to  coiifimte 
he  has  no  (jmrnii 
full  knowkds" 
to  ships  of  war, 
w  to  comiuenT, 
ling  within  her 
ilties.    (Britisli 


loiintries. 

3osition,  tbat 
States,  pre- 
J  of  preroga- 
.itutiouiil  law 
H\s,  a  general 
treat  Britaiu, 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


403 


by  an  argument  derived  from  the  laws  of  the  United  States,  and  of  other 
conJitries,  with  a  view  to  show,  by  the  couiparisou,  the  insunieiency 
of  the  preventive  powers  of  British  law. 

To  the  whole  principle  of  this  argument,  so  far  as  it  relates  to  matters 
not  prohibited  by  the  general  law  of  nations,  Great  Britain  demurs; 
and,  even  with  respect  to  matters  which  are  prohibited  by  that  general 
law,  it  is  obvious  that  nothing  can  be  more  fallacious  than  au  attemi)t 
at  comparison,  which,  without  exact  and  special  knowledge  of  the  whole 
complex  machinery  of  laws,  judicature,  and  legal  procedure,  and  politi- 
cal aiul  civil  administration,  which  prevails  in  each  ditferent  country, 
can  pretend  to  decide  on  the  relative  efficiency  of  those  various  laws  for 
political  purposes.  The  materials,  however,  on  which  reliance  is  [daced 
for  this  comparison  in  the  American  Argument,  are  so  manifestly  scanty 
and  insufficient  as  to  make  the  answer  to  this  part  of  the  argument 
simple,  even  if  it  were  in  principle  admissible. 

As  to  the  laws  of  France,  Italy,  Switzerland,  Portugal,  Brazil,  Bel- 
pum,  and  the  Netherlands,  and,  in  fact,  of  almost  every  country  men- 
tioned in  the  Argument,  except  the  United  States,  it  can  hardly  be 
tbonght  that  the  Counsel  (or  the  United  States  understand  these  laws, 
which  are  all  substantially  the  sanu»,  better  than  M.  Van  Zuylen,  the 
>'etberlands  Minister,  who  has  to  administer  them,  and  who,  in  reply 
to  certain  inquiries  from  the  British  Charge  d'Att'aires  at  the  Uague, 
wrote : 

There  is  no  code  of  laws  or  n'<;nlations  in  the  Kingdom  of  the  Netherlands  coneern- 
ing  the  rights  and  duties  of  neutrals,  nor  any  special  laws  or  ordinainu's  for  either 
party  on  this  very  important  nuitter  of  external  luihlic  law.  The  (Joveniment  may 
use  Articles  ti4  and  85  of  the  I'enal  Code,  hut  no  legislative  provisions  havt;  heeu 
adopted  to  protect  the  Government,  and  serve  against  those  who  attempt  a  violatiou 
of  neutrality.  It  may  he  said  that  no  country  has  codified  these  r«;gulali(ui.s  and 
;;iven  them  the  loree  of  law  ;  and.  though  Great  llritain  and  the  United  States  have 
their  Foreign-Enlistment  Act,  its  etVect  is  very  limited. 

This  language  is  criticised  in  the  American  Argument  as  "inaccurate," 
but  it  is  in  reality  perfectly  exact,  for  such  provisions  as  those  of  Arti- 
cles 84  and  85  of  the  French  Penal  Code  cannot  possibly  be  d<'scribed 
as  either  prohibiting  oi'  enabling  the  Government  to  prevent  those 
detinite  acts  and  attemi»ts  against  which  it  was  the  object  of  the  British 
and  the  American  Foreign-Enlistment  A<;ts  to  provide.  These  Articles 
are  punitive  only,  and  they  strike  at  nothing  but  acts,  unautlunized  by 
the  Government,  which  may  have  "  exposed  the  State  to  a  declaration 
of  war,"  or  "  to  reprisals."  The  language  of  the  corresponding  laws 
of  almost  all  the  other  States,  except  Switzerland,  is  admittetl  to  be 
similar.  That  of  Switzerland  prohibits  generally,  under  penalties,  all 
"acts  contrary  to  the  law  of  nations,"  while  it  regulates  (by  enactment, 
the  particular  provisions  of  which  are  not  stated)  the  enlistment  of 
troops  within  the  Swiss  Federal  territory." 

No  man  having  the  least  knowledge  of  the  laws  and  constitutional 
systems  of  Great  Britaiu  and  the  United  States  can  be  supposed  to 
imagine  that  enactments  conceived  in  these  vague  and  indefinite  terms, 
if  they  had  been  adopted  by  either  of  those  countries,  would  have  beeu 
of  the  smallest  use  for  the  purpose  of  preventing  such  acts  as  those  of 
which  the  Government  of  the  United  States  now  complain  ;  much  less 
that  they  would  have  been  comparable  in  point  of  etiiciency  •with  the 
definite  means  of  prevention  provided  and  directed  against  attempts, 
as  well  as  acts,  by  the  Acts  of  Congress  and  of  Parliament,  which  were 
actually  in  force  in  those  nations  respectively. 

But  it  is  assumed,  in  the  Argument  of  the  United  States,  that  these 
special  laws  were  in  all  these  countries  supplemented  by  au  elastic  and 


m:' ' 


lil 


««-■ 


404 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


arbitrary  executive  power.    Oftliin  assertion  no  proof  in  detail  is  at- 
tempted to  be  given ;  nor  is  it  believed  to  be  consistent  with  tli<>  fa(;t. 

If  the  French  and  other  tJovernnieiits  issued  executive  l'ro(!hiiiiatioiis 
forbidtling  their  subjects  to  do  acts  of  the  nature  now  in  question,  so  also 
did  the  (^ueen  of  (heat  liritian.  IJy  iler  ^Majesty's  Proclamation  ()t  Noii- 
trality,  (13th  ^lay,  1801,)  she  "strictly  chargedand  comnnmded  all  her 
subje(!t8  to  observe  a  strict  neutrality  durinjj  the  hostilities"  (betwooii 
the  United  States  and  the  (confederates,)  "and  to  abstain  from  violatiii<' 
or  contraveniui;;-  either  the  laws  and  statutes  of  the  realm  in  this  bdialE 
or  the  law  of  nations  in  relation  thereto;"  and  she  warned  them,  ''luui 
all  persons  whatsoever  entitled  to  her  protectior  " — 

"That  if  any  of  thorn  should  presnuio  to  do  any  acts  in  doioj^ation  of  their  duty,  i^ 
suliJt'ctH  of  a  neutral  sovcrt'ifjn,  in  the  said  contest,  or  in  violation  of  the  law  of  iialidiis 
in  that  lichalf,  as  for  example,  and  more  especially,  hy  entering;  into  the  military  sci- 
vice  of  either  of  the  said  contending  parties  as  commissioned  or  non-connnissioned  (iitj. 
cers,  or  soldiers  ;  or  by  serving  as  ollleers,  sailors,  or  marines,  on  hoard  any  ship  or  ves- 
sel of  war,  or  transport,  of,  or  in  the  service  of,  either  of  the  said  contending  paities; 
or  by  engaging  to  go,  or  going,  to  any  jdaco  beyond  the  seas  with  intent  to  enlist  or 
engage  in  any  such  service,  or  l»y  procuring,  or  attempting  to  procure,  within  Her  Maj- 
est.v's  dominions,  others  to  do  so;  or  by  tilting  out,  arming,  or  equipping  any  sliip  m 
vessel  to  be  employed  as  a  shi]»  of  war,  or  jirivateer,  or  transptut,  by  either  of  the  said 
contending  i)arties;"  (or  by  breach  of  blockade,  or  carriage  of  contraband,)  "all  per- 
sons so  otiending  would  incur  and  be  liabh!  to  the  several  i)enalties  and  penal  coiisi- 
(luences."  by  the  (British  Foreign-Enlistment)  Act,  "  or  by  the  law  of  nations,  intbat 
behalf  imposed  or  denounced." 

If  this  Proclamation  referred  (as  it  did)  to  British  law  in  some  cnses. 
and  to  the  law  of  nations  in  other  cases  for  its  sanctions,  the  French 
and  all  other  Proclamations  of  the  like  character  also  had  reference,  for 
the  like  i)urposes,  to  their  own  respective  national  laws,  and  to  the  law 
of  nations.     Whatever  surveillance  may  have  been  exercised  by  the 
French  Government,  according  to  the  particular  i)rovi8ions  of  their  own 
'laws,  over  the  builders  of  the  rams  ijitended  for  the  Confederates,  at 
Xtmte.^-  and  at  Bordeaux,  the  construction  of  those  vessels  was  at  all 
events  not  stopped  ;  and  one  of  them,  the  Stonewall,  did  eventually  pass 
into  the  hands  of  the  Confederates;  nor  was  it  by  any  power  of  tin- 
French  Executive,  or  of  the  French  law,  that,  she  was  afterward  inter- 
cepted, before  she  had  actually  committed  destructive  acts  against  the 
shipping  of  the  United  States.    The  (Georgia  received  her  armament  in 
French  waters.     Commodore  Barron,  "  the  head  of  the  Confederate 
Navy  Depaitment  in  Europe,"^  was  established  in  Paris;  a  Frenchman 
resitiing  in  Paris,  named  Bravay,  intervened  in  the  Confederate  interest 
as  the  ostensible  purchaser  of  the  rams  at  Birkenhead,  and  claimed 
them,  against  the  seizure  of  the  British  Government,  without  any  aid 
from  French  authority  to  Her  jMajesty's  Government  in  their  resistaiif' 
to  that  claim.    These  facts  are  not  mentioned  as  implying  any  Avant  ot 
pro])er  diligence  on  the  part  of  the  French  Government ;  but  to  show. 
that  even  in  that  country,  at  a  time  when  the  Imperial  Government 
exercised  much  larger  powers  of  control  over  public  and  private  liberty 
than  could  ever  be  possible  in  Great  Britain,  (or,  as  it  is  believed,  in  the 
United  States,)  the  Executive  either  did  not  possess,  or  did  not  find  it 
practicable  to  exercise  with  the  preventive  efticacy  which  the  American 
Argument  seems  to  deem  necessary,  any  merely  discretionary  powers  of 
interference. 

Yl. — On  the  Preventive  Poicers  of  the  Law  of  the  United  States. 
The  comparison  between  the  law  of  Great  Britain  and  the  law  of  the 


'  See  letter,  dated  January   27, 1865,  from  Consul  Morse   to  Mr.  Adams.    (United 
States  Appendix,  vol.  ii,  p.  175.) 


BRITISH    SUPPLEMENTAL    ARGUMENT. 


4ori 


22.  ih\  tliHi-ornitiir* 

I'mtril  St.ltr-t  liM. 
twr.  II  llii'ir 'US  ri  I  i»ii 
nil. I  lll'lll-ll  li».  Ill 
iirtlfi  til  linn  (•  II  gen- 
ITll  W.lllt  III  ilili'  illl- 
ifti'liri*  llK.lltinl  (iriMt 
llntiiill. 


'2X  K\:itiiiiKi  t  i  on 
lit     t  h  f     pri'M-iil  ivi- 

pIlWlT:*  lll'llll'  AllllT- 
ic  111  (J'lViTIIIIH'llt.  Mil- 

iliT  tliiir  Arts  III' 
Cniiuri'H.s  t'li  r  t  lit* 
prcsci'vatiiiii  of  iifii- 
tnility. 


ITnitod  States  is  more  easy  ;  beeanse  they  have  a  very  close 
iiistorical  and  Juridical  relation  to  each  other;  and  because 
Imth  these  nations  exclude  from  their  constitutional  systems 
all  forms  of  arbitrary  iK)\ver. 

What  tlien  are  tlie  preventive  ])o\vers,  found  in  the  sev- 
onil  A(;ts  of  Conjjress  from  time  to  time  passed  ui)on  this 
subject  in  the  United  States,  and  wliich  are  admitted  (at  im^e  L»7  of  the 
Airicricnn  Ar}>nment)  to  be  the  oidy  preventive  i)owers  whitih  the  lOxecu- 
tive  (lovcrnment  of  tlie  United  States  of  right  possesses  ?  How  have 
those  powers  been  used  in  practice  ?  And  witli  whatdegree  of  success  and 
I'lticicMcy  so  far  as  regards  tlie  i)ra<?tical  objecit  of  i)revention  t  This  in- 
quiry is  directly  challenged  in  the  t'ase,  in  the  Appendix  to  the  Coun- 
ter Case,  and  in  the  Argument  of  the  United  States,  for  the  purpose  (as 
it  would  seem)  of  showing  that  if  the  law  of  Great  Britain  had  been 
eqnal  in  etticiency  to  that  of  the  United  States,  and  had  been  enforced 
with  an  e(pial  degree  of  diligence,  the  present  causes  of  complaint  might 
not  have  arisen.  Great  Ibitain  has  no  reason  to  shrink  from  the  test  of 
tliligence  so  tendered  on  the  part  of  the  United  States  ;  nor,  in  accepting 
it,  is  it  Just  to  iini)ute  to  her  Government  an  intention  to  recriminate,  to 
introduce  any  irrelevant  topics,  or  to  call  in  question  the  general  good 
faith  of  the  Government  of  the  United  States,  in  the  conduct  of  its  re- 
lations with  foreign  Powers. 

The  only  i)reventive  powers  material  to  this  question,  which  were  ex- 
pressly or  by  implication  conferretl  by  the  several  Acts  of 
Congress  relating  to  this  subject,  are  contained  in  (1)  the 
tbird  section  of  the  Act  of  171)4,  amended  by  the  first  section 
of  the  Act  of  1817,  and  re-enacted,  on  the  repeal  of  those 
Acts,  by  the  third  section  of  the  Act  of  1818;  (2.)  The  sev- 
enth section  of  the  Act  of  17!)!:,  re-enacted  by  the  eighth  section  of  the 
Act  of  1818;  (3.)  The  second  section  of  the  Act  of  1817,  re-enacted  by 
the  tenth  section  of  the  Act  of  1818  ;  and,  lastly,  the  third  section  of  the 
Act  of  1817,  re  enacted  by  the  eleventh  section  of  the  Act  of  1818. 

It  will  be  sutlicient  to  consider  these  different  powers  as  they  stand  in 
the  latest  Act,  by  which  the  provisions  of  the  two  former  were  consoli- 
dated, and  the  former  Acts  themselves  repealed. 

(1.)  Section  3  of  the  Act  of  1818  made  it  penal  for  any  person,  within 
tlie  liaii'ts  of  the  United  States,  to  "  fit  out  and  arm,  or  attempt  to  fit 
out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  knowingly  to  be 
ionccrned  in  the  furnishing,  fitting  out,  or  arming,  of  any  ship  or  vessel," 
with  the  intent  thai  such  ship  or  vessel  should  be  employed  in  any  for- 
eig:ii  belligerent  service  ;  and  forfeited  every  such  ship  or  vessel,  with 
her  tackle,  &c.;  one-half  to  any  informer,  and  the  other  half  to  the  use 
of  the  United  States. 

This  clauscagrees  in  substance  with  the  seventh  section  of  the  British. 
Foreign-Enlistment  Act;  except  ti 'il.  in  the  definition  of  the  i)rincipal 
ott'eiises  under  it,  it  always  coupli-;^  armament  with  e<piipment,  which 
the  British  clause,  using  the  word  "or"  ("equip,  furnish,  fit  out,  or 
arm,"  &c.)  instead  of  the  word  "  and,"  ("  fit  out  and  arm,"  &c.,)  through- 
out disjoins ;  and  it  omits  to  state  by  what  officers,  or  in  what  manner,, 
seizures  under  it  are  to  be  made,  the  British  clause  expressly  emi)ower- 
ing  such  seizures  to  be  made  by  Her  Majesty's  naval  officers,  or  officers 
of  the  Customs  or  Excise,  authorized  to  make  seizures  under  the  Customs 
and  Navigation  Acts.  Inasmuch,  however,  as  forfeiture  necessarily  im- 
plies the  power  of  seizure,  this  clause  (though  the  tneans  of  seizure  are 
uot  here  defined)  is  one  of  preventive  efficacy.  There  is  a  further  dif- 
fereuce,  which  it  seems  right  to  mention,  (us  it  has  been  mentioned  by 


406 


SUPPLEMENTARY   AKCUMENTS    AND   S'^    TEMENTS. 


^'1 


i2.i 


the  Counsel  of  the  United  States,)  viz,  that  hau  the  beneflt  of  forfojt- 
ures  is  given  to  informers. 

(2.)  The  eighth  section  of  the  Act  of  ISIS  is  that  which,  in  the  present 
Argument,  seems  to  be  mainly  relied  on  by  the  United  States.  "  The 
American  Act,"  says  the  Argnment,  (p.  29,) "  is  preventive,  calls  for  exec- 
ntive  action  ;  and  places  in  the  hands  of  the  l*resi<lent  of  the  Uuitod 
States  the  entire  military  and  naval  fon^e  of  the  Government,  to  be  em- 
ployed l\v  him  in  his  discretion,  for  the  prevention  of  foreign  enlist- 
ments in  the  United  States." 

In  reality,  however,  the  powers  given  to  the  President  by  that  section 
are  dependent  upon  conditions,  which,  if  an  evactly  siaular  claiis(!  luul 
been  contained  in  the  British  Foreign-Enlistment  Act,  would  have 
made  them  inapplicable  to  the  case  of  tlie  equipment  in,  and  departure 
from,  liritish  territory,  of  an  unarmed  ship  of  war  intended  for  tlie  Con- 
federates; and  as,  in  any  case  of  resistance  to  lawful  civil  authority  in 
the  execution  of  the  British  laws  of  Customs  and  Navigation,  or  of  the 
roreign-Enlistment  Act,  the  seizure  which  Her  Majesty's  otlicers  of  licr 
Customs  ami  Navy  are  anthorize^l  to  make  may  be  supported  by  the  nse 
of  adequate  force,  under  the  direction  of  those  otTicers,  at  Her  JMaJestv's 
discretion,  such  an  enactment  would  have  had  the  effect  rather  ot  limit- 
ing than  of  enlarging  the  powers  now  possessed  for  that  purpose  by  the 
British  Crown. 

This  section  authorizes  the  President,  or  such  other  person  as  he  shall 
have  empowered  for  that  purpose,  to  employ  such  part  of  the  land  or 
naval  forces  of  the  United  States,  or  of  the  militia  thereof,  as  shall  be 
judged  necessary,  in  any  one  or  more  of  the  several  cases  there  enumer- 
ated, viz : 

(a.)  In  every  case  in  which  n  rcss  '  fihall  hefiiicd  ont  and  armed,  or  at- 
tempted "to  he  fitted  out  and  am  {L  c,  against  the  prohibitions  of 
the  third  section.) 

(6.)  "  Or  in  which  the  force  of  any  vessel  of  war,  cruiser,  or  armed 
vessel,  shall  be  increased  or  augniented,  (/.  <?,,  against  the  prohiltitioiis 
of  the  tifth  section,)  "  by  adding  to  the  number  of  the  guns  of  any  such 
vessel  whi(di,  at  the  time  of  her  arrival  in  the  waters  of  the  United 
States,  was  in  the  service  of  a  foreign  Prince,  «S:c.,  or  by  changing  those 
on  board  of  her  for  guns  of  a  larger  caliber,  or  by  the  addition  tliereto 
of  any  eipiipment  solely  ai)plicable  to  war." 

(c.)  "  Or  in  which  any  military  expedition  or  enterprise  shall  be  begun 
tobe  set  on  foot  contrary  to  the  provisions  and  prohibitions  of  this  Act  f 
(i.  e.,  against  the  prohibitions  of  the  sixth  section,  which  makes  it  penal 
for  any  person  "  within  the  territory  or  jurisdiction  of  the  United  States" 
to  "begin  or  set  on  foot  or  provide  the  means  for  any  military  expedition 
or  enterjrrise  to  be  carried  on  from  thence  against  the  territory  or  dominions 
of  any  foreign  State,"  &c.) 

(d.)  "And  in  every  case  of  the  capture  of  a  ship  or  vessel  within  the 
jurisdiction  or  protection  of  the  United  States,  as  before  detined;"  (/.  c, 
by  the  seventh  section,  which  enables  District  Courts  of  the  United  States 
to  "  take  cognizance  of  complaints,  by  whomsoever  instituted,  in  cases 
of  capture  made  within  the  waters  of  the  United  States,  or  within  a 
marine  league  of  the  coasts  thereof.") 

{€.)  "And  in  every  case  in  which  any  process  issuing  out  of  any  Conrt 
of  the  United  States  shall  be  disobeyed  or  resisted  by  any  person  or 


8l!h 


'  The  words  "  contrary  to,"  &c.,  apply,  in  the  constrnction  of  the  section,  to  cases  (n.) 
(h,)  uud  (c,)  the  particular  provisions  and  prohibitions  applicable  to  each  case  beiug 
those  above  stated. 


^mmifi 


BRITISH    SUPPLEMENTAL    ARGUMENT. 


407 


|)ersona  having  Llie  custotly  of  any  v 
vessel  of  any  foreign  Prince,"  &c. 


essel  of  war,  cruiser,  or  other  armed 


It  will  be  seen  that  none  of  those  caaeH  except  the  first  are  material 
to  the  present  inquiry,  and  that  to  constitute  the  (irst  case  the  vessel 
must  have  been  armed,  or  attempted  to  be  armed,  within  the  jurisdiction 
of  the  United  States. 

The  purposes  for  which,  in  any  of  these  cases,  the  President  is  author- 
ized by  the  section  to  employ  the  land  or  naval  forces  or  the  militia  of 
the  United  States  are  the  following; : 

(a.)  "For  the  purposes  of  detaining  any  snch  ship  or  vessel,  with  her 
prize  or  prizes,  if  any,  in  order  to  the  execution  of  the  prohibitions  and 
penalties  of  this  Act;  "  (a  purpose  applicable  oidy  to  such  ships  or  vessels 
as  are  comprehended  within  cases  («,)  (&,)  (</,)aud  (c).) 

(/>.)  "And  to  the  restoring  the  prize  or  prizes  in  cases  in  which  restora- 
tion shall  have  been  adjudged  j"  (a  purpose  applicable  only  to  cases  (//) 
ami  («).) 

(('.)  "And  also  for  the  purpose  of  preventing  the  carrying  on  any  such 
expedition  or  enterprise  from  the  territories  or  jurisdiction  of  the  United 
States  against  the  territories  or  dominions  of  any  foreign  Prince,"  &c.; 
(a  purpose  applicable  only  to  case  (c).) 

It  is  thus  seen  that  all  these  powers  of  i)reveutiou  given  by  section  8 
to  the  President  are  limited,  and  not  arbitrary,  and  that  tht^y  would 
none  of  them  have  been  api>licable  to  prevent  the  departure  from  the 
United  States  of  an  unarmed  vessel,  not  intended  to  be  armed  within 
American  jurisdiction,  built  and  equii)ped  within  the  United  States,  and 
(lispiitched  from  thence  for  the  use  and  service  of  a  belliger«»nt. 

Nor  is  there  b  lieved  to  be  any  trace  in  the  annals  of  the  law  or 
history  of  the  United  States  of  their  ever  having  been  employed  for  such 
(I  purpose. 

IJut,  further,  this  eighth  clause  of  the  Act  of  Congress  of  1818  is  a  re- 
enactnuMit  of  the  seventh  clause  of  the  Act  of  1791,  the  purpose  ami  effect 
ot  whicli  was  examined  and  autlioritatively  ex[)lained  by  the  Supremo 
Court  of  the  United  States  in  the  year  1818,  in  the  case  of  "  Gelston  ivs. 
Uoyt,"  (reported  in  the  fourth  volume  of  Judge  Curtis's  Reports,  pages 
i.'ll-L'31.)  An  action  was  brought  against  certain  olUcers  of  the  Customs 
of  the  United  States  for  the  wrongful  seizure  of  a  vessel,  and  they 
attempted  (among  other  things)  to  justify  themselves  by  pleading  that 
iu  taking  possession  of  and  detaining  the  ship  they  had  acted  under  the 
instructions  of  the  President,  given  by  virtue  of  the  seventh  section  of 
the  act  of  1791.  That  defense  was  disallowed,  on  the  grounds  that  the 
plea  did  not  allege  any  forfeiture  under  the  third  section,  nor  justify  the 
taking  or  detaininy  the  ship  for  any  supposed  forfeiture,  and  did  not  show 
tliat  the  defendants  belonged  to  the  naval  or  military  forces  of  the  United 
States,  or  were  employed  in  such  capacity  to  take  and  detain  the  ship,  in 
order  to  the  execution  of  the  prohibitions  and  penalties  of  the  act. 

Mr.  Justice  Story,  in  giving  the  judgment  of  the  Court,  observed: 

Tlie  power  thus  intrusted  to  tl.e  President  is  of  a  very  liij;h  and  delicate  nature,  and 
niiuiitestly  intended  to  bo  exercised  only  when,  by  the  ordinary  process  or  exercise  of 
civil  authority,  the  purposes  of  the  law  cannot  bo  eH'i'ctuated.  It  is  to  be  exerted  on 
extraordinary  occasions,  and  subject  to  that  hij>h  responsibility  which  all  executive 
acts  necessarily  involve.  Whenever  it  is  exerted,  all  persons  who  act  in  obedience 
to  the  executive  instructions,  in  cases  within  the  act,  are  completely  justirted  in  takinjj 
possession  of  and  detaininji  the  ottendinff  vessel,  and  are  not  responsible  in  danuiyes 
lor  any  injury  which  the  party  may  suH'er  by  reason  of  such  proceeding.  Surely  it 
uevtT  could  have  been  the  intention  of  Congress  that  such  jmwer  should  be?  allowed  as 
a  shield  to  the  soizing-olHcer,  in  cases  where  that  seizure  might  be  made  by  tlie  ordinary 
civil  means.  One  of  the  cases  put  in  the  section  is  where  any  process  of  the  Courts  of 
tile  United  States  is  disobeyed  and  resisted ;  aud  this  case  abundantly  shows  that  the 


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I 

t 


IfM 


Pft-f^'p' 


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408 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


r  t 


:  1 


■il  ■ 
1,1 

my  ■  ■ 
ti  ■■ 


m 

:4a  !:i 


W: 


aHthorUi/  of  flic  I'rcnidciif  wan  not  intended  to  be  called  into  exercise,  unless  where  militarii  aui 
naval  forcvs  were  ncivsudrij  to  iiixiin:  the  ixcnilion  of  the  law.  In  ttsriiis,  tlic  soction  is  ((iii- 
lined  to  tlir^  (Miiijioyiuciitof  iiiiiitiiry  and  iiiiviil  forces  ;  and  there  in  neilher  public  ixilini 
nor  principle  to  Jiixtify  an  rrlenxio'/t  of  the  prvrotjalirc  beyond  the  trrm^  in  which  it  in  (linn. 
Cti:ij!;re,s,s  nii>;lit  In;  pcrtoctly  \villin<>;  to  iiitinst  Uio  Prosident  with  the  powor  to  take 
and  detain  whcneccr,  in  hin  opinion,  the  case  wan  no  Jiaijrant  that  military  or  naval  /«nv.y 
were  ncccsnary  to  enforce  Ihc  lawn,  and  yet,  with  {•reat  proprif^ty,  deny  it  where,  from  tin,, 
cintnnistantu's  of  tlie  case,  tlie  civil  otHcers  of  the  (Jovt^'ninent  niif;;ht,  npon  tlieir  private 
ies|ioii.sibility,  witliont  any  ilati<i,er  to  thti  jtnhlic  peace,  completely  execute  thcfn.  //  in 
certainly  againnl  the  yencral  theory  of  our  inntitHlionn  to  create  iireat  discretionary  powenhu 
implication,  and  in  the  present  instance  we  nee  nothing  to  justify  it. 

In  how  inaiiy  instances  it  lias  been  found  necessary,  or  thought  proper, 
to  call  into  exercise  this  power  of  the  President  of  the  United  States, 
it  woidd  not  be  material  for  the  present  purpose  to  impiire.  It  seems 
enough  t.)  observe,  that  in  order  to  call  this  power  into  exercise  at  all 
in  any  case  of  a  vessel  equip[)ed  or  adapted  for  war  within  the  United 
States,  there  must  be  a  state  of  facts  established  or  deemed  capable  of 
beino-  ])ioved  in  due  course  of  law,  constituting  an  infringement  of  the 
prohibitory  and  i)eiud  clauses  of  the  Act  of  1818,  and  producing  a  for- 
feiture of  the  vessel  by  reason  of  that  infringement ;  and  that,  in  any 
corresi)onding  case  under  the  iJritish  Foreign-Enlistment  Act  of  181!), 
the  (^ueen  of  (Ireat  Britain  possessed  similar  and  not  less  effective  pow- 
ers, to  fortify  the  ordinary  administration  of  the  law,  in  case  of  need. 
by  the  use  of  extraordinary  force,  as  was  exemplified  by  the  employment 
of  a  force  under  the  commaml  of  Captain  Ingletield,  at  Birkenhead,  in 
1803,  to  prevent  the  forcible  removal  of  the  iron-clad  rams  frnui  tlie 
Mersey. 

.').  The  tenth  section  of  the  Act  of  Congress  of  1818  requires  secinitv 
to  be  given  by  "  the  owners  or  consignees  of  every  armed  «hip  or  vessel 
sailing  out  of  the  ports  of  the  United  States,  belonging  wholly  or  in 
jiart  to  citizens  thereof,"  i^gainst  the  employment  of  such  ship  or  vessel 
"i//  nueh  owners,  to  cruise  or  commit  hostflities  against  any  foi  ipi 
Prince,"  &c.  This  clause  is  inapj)licable  to  any  ship  not  actually  oi  nwif 
within  the  jurisdiction  of  the  United  States  ;  and,  even  as  to  any  vessel 
so  armed,  no  security  is  required,  unless  it  is  owned  by  citizens  of  tiie 
United  States;  nor,  even  as  to  a  ship  so  armed  and  so  owned,  is  any  se- 
curity required  against  her  employment  to  cruise  or  commit  hostilities 
by  any  foreign  Pow(  r,  to  whom  it  may  be  transferred  after  leaving  the 
waters  of  the  United  States. 

4.  The  eleventh  section  of  the  same  Act  authorizes  and  requires  the 
collectors  of  United  States  t'nstoms  "to  detain  ani/  vessel  munij'esihj  Iniilt 
for  tvarlike  purposes,  and  al)out  to  depart  from  the  United  States,  oj 
which  the  cargo  shall  prineipalli/  consist  of  arms  and  munitions  of  irai; 
when  the  number  of  men  shipped  on  board,  or  other  circumstaiiees. 
shall  render  it  probable  that  sucii  vessel  is  intended  to  be  employed  Inj 
the  owner  or  owners  to  cruise  or  commit  hostilities  upon  the  subjeeis, 
citizens,  or  property,  of  any  ibreign  State,  &.v.,  until  t\u)  decision  ui"  the 
President  be  had  thereon,  or  until  the  owner  or  owners  shaU  give  such 
bond  ami  security  as  is  required  of  the  owners  of  armed  ships  by  the 
}»receding  section." 

The  jmwer  thus  given  to  detain  ships  "manifestly  built  for  warlike 
purposes,"  when  circumstances  "render  it  probable  that  they  are"  in 
tended  to  be  enjployed  "to cruise  or  commit  hostilities  upon  the  subjects, 
&c.,  of  a  fortiign  State,"  &c.,  is  (;ontined  to  the  single  case,  in  which  such 
ships  have  a  cargo,  principally  consisting  of  arms  and  munitions  of  wtv; 
and  even  in  that  case  it  ceases,  upon  security  being  given,  in  the  same 
manner  as  under  the  tenth  section,  i.e..  security  against  the  enqiloyinei.t 
of  the  ship  by  her  then  cvistiny  otcners  to  cruise  or  commit  hostilities 


BRITISH    SUPPLEMENTAL    ARGUMENT. 


409 


atjaiust  any  foreign  State,  leaving  lier  perfectly  free  to  be  so  employed 
by  any  foreign  owner  to  wlunn  she  may  afterwards  be  transferred. 

It  is  honorable  to  the  candor  of  Mr.  Beinis,  an  American  writer,  not 
partial  certainly  to  Great  Britain,  (some  of  whose  contro-  ^i  T..«inm„i..,  .,i 
versial  writings  have  been  brought  before  the  Arbitrators  JI.';,„!i''^;r,;;"'',,ub. 
as  part  of  the  evidence  of  the  United  States,  in  vol.  iv  of  '  ' 
tlioir  Appendix,  pp.  12-32  and  37-40,)  that  he  pointed  out,  in  a  work 
imblished  in  18GG,  from  which  extracts  will  be  found  in  Annex  (I>)  to 
the  British  Counter  Case,  (pp.  149,  150,)  the  inferiority  (not  superio  .ity) 
lor  preventive  as  well  as  for  other  purposes  of  the  Act  of  Congre^ss  of 
1S18  (the  only  law  then  and  now  in  force  in  the  United  States  i'ov  the 
maintenance  of  their  neutrality)  as  compared  with  the  British  Foreign- 
Enlistment  Act  of  1810.  Nor  was  there  any  reason  to  complain  of  the 
lairness  of  Mr.  Seward,  when  (disregarding,  as  in  his  view  practically 
luiimiiortant,  all  those  points  of  detail  in  respect  of  which  these  two 
Acts  differed  from  each  other)  he  described  the  laws  made  for  this  pur- 
pose in  the  United  States  on  the  0th  Ai)ril,  1803,  as  "in  all  respects  the 
same  as  those  of  Great  Britain,"  and  on  the  11th  of  July,  1803,  as  "  ex- 
actly similar."  (See  Annex  (A)  to  the  British  Argument  or  Summary, 
page  40.)  But  it  is  certainly  astonishing,  after  these  acknowledgments, 
(and  in  view  of  the  facts  al)ove  stated,)  now  to  find  these  ditlerences 
between  the  ]>ritish  and  American  Statutes  insisted  ui)oi>j  in  the  Argu- 
me.it  of  the  United  States,  as  amounting  to  nothing  short  of  the  whole 
tlittcreuce  between  a  merely  penal  Statute  and  a  law  intended,  and 
liiective,  for  the  purpose  of  juevention ;  and  as  constituting,  on  that 
account,  a  sufficient  ground  for  inferring,  a  priori,  a  general  want  of  due 
diligence  o:»  the  i)art  of  Great  Britain,  with  respect  to  all  the  uuitters 
covered  by  the  jtresent  controversy. 

Some  reference  must  here  be  made  to  an  argument,  derived  by  the 
Counsel  of  the  United  States  frouj  the  fact  that  a  consider- 
ble  change  and  auuMulment  of  the  British  law  has  since  b'-^-Mi  ti."'v„Zi's"!.,"s 
iiuide,  and  that  new  preventive  i)owers  (of  a  kind  not  r,'i',"'i:.,'LtmenV  a^ 
lonnJ,  either  in  the  Act  of  Congress  of  1818  or  in  the  British 
Act  of  1810)  have  been  conferred  upon  the  Executive  Government  of 
Great  Britain,  by  a  recent  Statute  passed  by  the  British  Legislature  in 
1870.  The  Legislature  of  the  United  States  has  not  yet  thouglt  it  nec- 
essary or  exi)edient  to  introduce  any  similar  or  corresponding  provisions 
or  powers  into  the  law  of  that  country;  it  cannot,  therefore,  be  sup- 
posed that  the  Government  of  the  United  States  deems  such  provisions 
or  powers  to  be  indispensable  to  enable  a  constitutional  Government, 
the  Executive  of  which  is  bound  to  act  according  to  law,  to  fulfill,  with 
tlue  diligence,  its  international  obligations.  No  one  can  seritmsly  con- 
teiid  that  because,  after  experience  gained  of  rhe  working  of  a  particu- 
lar law  or  administrative  nuichi  'ry  of  tiiis  nature,  certain  points  may 
be  found,  on  a  deliberate  exaitiination,  in  which  it  appears  capable  of 
being  improved,  this  is  a  pro;  i  that  it  was  not,  before  these  improve- 
ments, reasonably  adequate  for  the  fullilbnent  of  any  international  obli- 
;iati;)iis  to  which  it  nuiy  have  been  nu^ant  to  be  subservient.  In  all  im- 
liroveiuents  of  this  kind,  it  is  the  object  of  wise  legislation  rot  to  limit 
itself  by,  but  in  many  respects  to  go  beyond,  the  line  of  antecedent  obli- 
K'dioii ;  the  domestic  policy  and  security  of  tho  State  which  nuikes  the 
law,  and  the  reasonable  wishes,  as  well  as  tho  -strict  rights  of  foreigu 
I'oweiffi,  are  proper  nujtives  and  elements  in  sucl.  legislation.  No  nation 
won  d  ever  voluntarily  make  such  improvements  in  its  laws,  if  it  were 
siipliesed  thereby  to  admit  that  it  hud  previorsly  failed  to  make  such 


m 


■■r^^ 


m 


410 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


I  i 


'  '    m 


Tp 


m 


due  provision  for  the  performance  of  its  public  duties  as  other  Powers 
inipfht  be  entitled  to  require. 
With  respect  to  the  lijjht  which  is  thrown  upon  these  questions  by 
. ,  American  history,  it  is,  in  the  first  place,  to  be  observed 

26.  Illui.tratii.ii.-.»of    ,,        .     ,,  •     t  •  j^-  o  ^        -,- a^  i    •     i        j^i  ^  ■^'  »  ^u 

th- [..Hrin.  ,.i  ,i|.e  that  thc  violatious  of  neutrality  which  the  Government  of 
h'Z!" oiiheuni',;.';!  Presidcut  Washington  took  measures  to  prevent,  <li(l  not 
■  '■''"'■  include  the  mere  building  or  sale  of  vessels  adapted  for  war, 

^\)r  or  to  a  belligerent,  within  the  territory  of  the  United  States,  or  the 
sending  abroad  of  such  vessels.  They  consisted  (in  the  words  of  Jeffer- 
son) in  "  the  practice  of  commissioning,  equipping,  or  manning  vessels 
in  portsof  the  United  States  to  cruise  on  any  of  the  belligerent  parties," ' 
Xext  it  will  be  seen  from  that  history  that  the  Government  of  the 
United  States,  having  made  (as  it  considered)  just  and  reasonable  pro- 
vision by  laws  for  the  fulfillment  oi  its  international  obligations,  always, 
both  before  and  after  1817-18,  referred  to  those  laws,  and  to  the  evidence 
and  procedure  required  by  them,  as  the  proper  measure  of  the  diligence 
which  it  ought  to  use  when  foreign  Governments  complained  that  ships 
had  been  or  were  being  fitted  out  or  dispatched  from  ports  of  the  United 
States  for  the  war  service  of  their  enemies  or  revolted  subjects.  Of  the 
truth  of  this  statement,  examples  will  be  found  in  the  letters  of  Mr. 
Mallory  to  Do!i  Antonio  Villalobos,  (10  December,  181C,)  Mr.  Rush  to 
Don  Luis  de  Onis,  (March  28, 1817,)  Mr.  Fisk  to  Alr.Stoughton,  (Septem- 
ber 17,  1817,)  Mr.  Adams  to  Don  Luis  de  Onis,  (August  24,  1818,)  Mr. 
Adams  to  the  Chevalier  de  Serra,  (March  14,  1818;  October  23,  1818; 
September  30,  1820;  and  April  30,  1822  ;)  all  of  which  are  in  the  third 
volume  of  the  Appendix  to  the  British  Case,  (pages  100, 300,  120,  12!>, 
150,  157,  158,  100;)  also  in  the  letters  of  District  Attorney  Glenn  to  the 
Spanish  Consul  Chacon,  (September  4,  1810,)  and  to  Secretary  Monroe, 
(February  25,  1817,)  and  of  Secretary  Rush  to  Mr.  Mallory  and  Mr. 
McCulloch,  (March  28,  1817,)  which  are  among  the  documents,  accom- 
panying the  Counter-Case  of  the  United  States  (Part  II,  pages  40, 53-50, 
01,  and  02  ;)  and  in  those  of  Attorney-General  Hoar  to  District  Attorney 
Smith,  (March  18, 1809,)  and  to  United  States  Marshal  Barlow,  (^lay  10, 
1800,)  among  the  documents  accompanying  the  Counter  Case  of  tlie 
United  States,  (Part  HI,  pages  743  and  745-747;)  and  in  the  Circular  of 
Attorney-General  Hoar  to  the  District  Attorneys,  (March  23, 180!),)  and 
in  the  letter  of  District  Attorney  Pierrepont  to  Attorney-General  Hoar, 
(]\Iay  17,  1809;)  which  are  in  the  "('uban  Correspondence,  18(J0-IS71.' 
accompanying  the  Counter  Case  of  the  United  States,  (pages  29  and  5!).) 

VH. — Ohjcctions  of  iheUnitcd  Strifes  to  the  Aflminhtrative  System  of  Great 
Britain,  and  to  the  ecidence  reiiuircd  for  the  enforcement  of  the  Law. 

It  appears,  however,  to  be  suggested  that  it  was  necessary,  for  the 
exercise  of  due  diligence  on  the  part  of  Her  Majesty's  (lov- 
ernment,  that  they  should  have  organized  some  system 
of  espionage,  or  other  extraordinary  means  of  detecting  and 
proving  the  illegal  equipment  of  vessels,  during  the  latt^  civil 
\v  -;  that  it  was  inconsistent  with  due  diligence  to  treat 
evidence  of  illegal  acts  or  designs,  produidble  in  a  British 
Court  of  Justice,  as  generally  necessary  to  constitute  a  "reasonable 
ground  for  believing,"  that  an  illegal  etiuipment,  which  ought  to  be  |)re- 
vented,  had  tak'ii  place  or  was  being  attempted ;  and  that  in  all  su(!h  cases 
the  orticers  of  the  British  Government  ought  to  have  obtained  for  them- 

iBi'itiHb  App.,  vol.  V,  p.  242. 


27.  ArsimicntH  (if 
ttl.-  I'lirti-,!  Sl:ilii 
fntin  rdlHKHStfti  (ir- 
(V*t't^  in   the  iidtitini^- 

IritlVO    Ui:|rlliliiTV  tif 

llnli'.li  I  iw.iuhl  iHirii 
thiM'viil.'rn'i'ri»t|iiln'il 
liy  tlw  lln^l^<ll  liiiv- 
eruititmt. 


*pi 


BRITISH   SUPPLEMENTAL   ARGUMENT. 


411 


selves  the  proper  evidence,  without  asking  for  assistance  from  the  Min- 
isters, Consuls,  or  other  Agents  of  the  United  States. 

We  present  now  [says  the  Argument  of  the  United  St.ites,  pages  157  to  160]  to 
the  notice  of  tlio  Arbitrators,  certain  general  facts  which  inculpate  Great  Britain  for 
faihne  to  fultill  its  obligations  in  tlio  premises,  as  assigned  by  the  Treaty. 

1.  The  absolute  omission  by  Great  Britain  to  organize  or  set  on  foot  any  scheme  or 
system  of  measures,  by  which  the  Government  should  be  put  and  kept  in  possession  of 
information  concerning  the  efforts  and  proceedings  which  the  interest  of  the  rebel  hel- 
lijjerents,  aiul  the  co-operating  zeal  or  cupidity  of  its  own  subjects,  would,  and  did, 
plan  and  carry  out,  in  violation  of  its  neutrality,  is  conspicuous  from  the  outset  to  the 
close  of  tin*  transactions  now  under  review.  All  the  observations  in  answer  to  this 
charge,  made  in  contemporary  correspondence  or  in  the  British  Case  or  Counter  Case, 
uecessarily  admit  its  truth,  and  oppors  the  imputation  of  want  of  "due  diligence"  on 
this  score  upon  the  simple  ground  that  tiio  obligations  of  the  Government  did  not  re- 
quire it,  and  that  it  was  an  unacceptable  office,  both  to  Government  and  people. 

Closely  connected  with  this  omission  was  the  neglect  to  provide  any  systematic  or 
general  official  means  of  immediate  acHon  in  the  various  ports  or  ship-yards  of  the 
kiiigilom,  in  arrest  of  the  preparation  or  dispatch  of  vessels,  threatened  or  probable, 
until  a  deliberate  inspection  should  neasonahly  determine  whether  the  baud  of  the  Gov- 
erument  should  be  laid  upon  the  enterprise,  and  its  projecl.  broken  up  and  its  i)ro- 
jectoir,  punished.  The  fact  of  this  neglect  is  indisputable  ;  but  it  is  denied  that  the 
use  of  "  due  diligence  to  prevent,"  involved  the  obligation  of  any  such  means  of  pre- 
vention. 

We  cannot  fail  to  note  the  entire  absence  from  the  proofs  presented  to  the  Tribunal 
of  any  evidence  exhibiting  any  desire  or  eft'oit  of  the  British  Govtirnment  to  impress 
upon  its  staff  of  officers  or  its  magistracy,  of  whatever  grade,  and  of  general  or  local 
jurisdiction,  by  prochunation,  by  circular  lett«'rs,  or  bj  special  instructions,  any  duty 
of  vigilance  to  iletect,  or  promptitude  to  declare,  of  activity  to  discourage  the  illegal 
outfit  or  dispatch  of  vessels  in  violation  of  international  duty  towards  iho  United 
States. 

It  is  not  less  apparent  that  Great  Britain  was  without  any  prosecuting  officers  to 
invite  or  to  act  upon  information  which  might  support  legal  proceedings  to  ]>unish, 
and^  by  the  terror  tluis  inspired,  to  prevent,  the  infractions  of  law  which  temh'd  to  the 
violation  of  its  internatiomil  duty  to  the  United  Stfates.  It  was  equally  without  any 
system  of  ext'cntivc  officers  specially  charged  with  the  execution  of  process  or  nmn- 
(lates  of  courts  or  magistrates  to  arrest  tiie  disi)atch  or  escape  of  suspected  or  incrim- 
inated vessels,  an<l  experienced  in  the  detective  capacity  that  could  discov'.r  and  ap- 
preciate the  eviileuco  open  to  personal  oliservation,  if  intrusted  with  this  executive 
duty. 

And  in  another  place,  (pa?'^  K^l ,)  they  added  that— 

The  Arbitrators  will  observe  tL  '     (litfcrenec  from  the.se  views  and  conduct  of 

Great  Britain  in  the  estimate  whicli  •  I  iiited  Sintis  have  put  u])i>ii  tlieir  duty  in 
these  respects,  of  si)ontan(!ous,  organized,  and  p' rmanent  vigilance  and  activity,  and 
in  the  methods  and  vjficavii  of  its  performaiid  '  »ii  all  the  occasions  w|)()n  which  this 
duty  has  been  called  into  exercise,  the  (Jovernnient  nf  the  Unit  !  States  has  enjoined 
the  spontaneous  and  persistent  activity  of  the  corps  »{'  Distriii  Attorneys,  Marshals, 
Collectors,  and  the  whole  array  of  subordi initios,  in  the  duties  of  ol>ser\  itioii.  detection^ 
information,  detention,  pro8ecuti«ui,  and  prevention. 

They  ask,  also,  (page  So,)  for  the  assent  of  tlic  Arbitrators  to  the 
views  of  Mr.  Dudley,  the  United  States  Consul  at  i.ivcrpool,  when  (writ- 
ing to  ]\Ir.  Seward  with  respect  to  the  re(piest  of  I  he  lUiti.sli  Govern- 
lueiit  for  evidence  as  to  the  destination  of  the  Alabinna,  before  such 
evideuce  had  been  supplied)  he  said  : 

I  do  not  think  the  British  Government  are  treating  us  propi  j  I.v  in  this  matter.  They 
are  not  dealing  with  us  as  one  friendly  naticm  ought  to  deal  with  another.  When  1,  aa 
the  Agent  of  my  Goveriwnent,  tell  ^Imm  from  evidence  submitted  to  nu-  that  1  have  no 
doubt  about  her  character,  they  ought  to  accept  this  until  the  parties  who  are  building 
her,  and  who  have  it  in  their  power  to  show  if  her  destination  and  i)urpose  are  legiti- 
luate  and  honest,  do  so.  *  *  *  The  burden  of  proof  ought  not  to  be  thrown  ni)on 
'IS.  Ill  a  hostilt!  community  like  this  it  is  very  difficult  to  get  information  at  any  time 
upon  thesjj  matters.  And  if  names  are  t«»  bo  given  it  wouhl  render  it  almost  impossi- 
hle.    The  G'.iveruiuent  ought  to  investigate  it  and  call  upon  us  for  proof. 

If  the  line  of  argument  contained  in  the  two  first  of  the  foregoing 


I 


if 

■it ' 


412 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


':  1' 


m 

•xm 


2-t.  inrnn.i.t.„..v  cxtracts  IS  usGcl  foF tlic  puii>ose  of  inducing  the  Arbitrators 
Ireu'v  w!l'h  hi 'n'  to  lioUl  the  BHtish  Government  responsible  for  matters 
Z-mT"','  Invl';,',';  which  were  never  actually  brought  to  their  knowledge,  so 
nMml.'I'hr'yimn'l'  as  to  make  their  prevention  possible,  (as  in  the  case  of  the 
.1  hei.ei.  Georgia  and  the  Shenandoah,  and  of  the  vessels  which  took 

out  armaments  to  those  ships,  and  to  the  Alabama  and  the  Florida 
respectively,  from  Great  Britain,)  it  appears  to  lose  sight  of  the  fact 
that,  according  to  the  express  words  of  the  first  Rule,  and  the  evident 
meaning  of  all  the  three  Kules  of  the  sixth  article  of  the  Treaty  of  Wash- 
ington, the  obligation  to  "  use  diligence  to  prevent"  is  consequent 
ui)on,  and  not  antecedent  to,  the  existeiice  of  "  reasonable  ground  for 
believing,"  that  in  the  particular  case  something  which  (if  known) 
ought  to  be  ])revented,  is  intended  to  be  done.  If  that  reasonable 
ground  for  belief  wa  -  in  any  particular  case  absent,  there  was  no  such 
obligation  ;  and  tf>  invite  the  judgment  of  the  Arbitrators  upon  some 
supposed  detects  in  the  administrative  system  of  Great  Britain,  with 
reg-ard  to  the  discovery  of  offenses  against  the  Foreign-Enlistment  xVct,  or 
the  laws  of  Customs  and  Navigation,  in  order  to  found  thereon  a  conclu- 
sion that,  under  some  different  system  of  administration, facts  which  never 
actually  came  to  the  knowledge  of  the  British  Government,  and  of 
wliicli  they  had  no  Information,  either  from  the  Agents  of  the  United 
States  or  from  any  other  <piarter,  miglic  pohc^ibU'  have  been  discovered 
in  time  for  luevention,  is,  practicallj',  to  ask  for  the  substitution  of 
different  Bules  for  those  of  the  Treaty,  and  to  impose  retrospectively  upon 
Great  Britain  obligations,  which  neither  usage  nor  international  law  has 
ever  hitherto  recognized  as  incumbent  upon  any  nation. 
As,  however,  it  is  concei^  able  that  this  line  of  argument  may  be 
thought  to  deserve  rather  more  attention,  >\hen  it  comes  to 
be  applied  to  cases  in  which  information,  unaccompanied 
by  legal  evidence  of  any  actual  or  intended  violation  of  the 
law,  was  given  to  the  British  Government  before  the  de- 
parture of  a  vessel  alleged  to  have  been  illegally  equipped, 
it  seems  e\i)edient  not  to  i^ass  it  by  without  refutation. 

It  is  a  complete  error  to  suppose  that  the  British  Government  did,  in 
fact,  ever  rely  merely  on  such  information  and  evidence  of  actual  or 
fiitended  violations  of  the  Foreign-Enlistment  Act  as  might  reach  them 
from  the  Ministers,  Consuls,  or  Agents  of  the  United  States ;  or  that 
they  did  not  recognize  and  fulfill  the  duty  of  endeavoring,  by  the  inde- 
pendent activity  and  vigilance  of  their  own  officers,  and  by  lollowing  up 
i\\l  such  information  as  reached  them  from  any  other  quarters  by  proi)er 
inquiries  made  through  those  officers,  to  discover  and  i)revent  any 
intended  breaches  of  the  law. 

The  warnings  of  the  Proclamation  of  Neutrality,  issued  at  the  com- 
mencejnent  of  tin-  war,  announced  to  all  the  Queen's  subjects  Her  Ma- 
jesty's determination  to  enforce  the  Foreign-Enlistment  Act  against  all 
offenders,  to  the  best  of  her  power.  Notwithstanding  the  statements, 
(already  cited  at  page  IGO  of  the  American  Argument,)  it  is  the 
fact  that  there  did  exist  "systematic  and  general  means  of  action,"  ade- 
quate in  all  respects  for  the  due  aiul  honajiile  enforcement  of  the  law, 
in  all  the  ports  and  places  where  ship-yards  existed,  throughout  tiio 
British  Empire.  It  is  also  the  fact,  notwithstanding  what  is  there 
said,  that  special  instruction  were  issued  to  the  Custom-house  authori- 
ties of  the  several  British  ports,  where  ships  of  war  might  be  con- 
structed, and  also  by  the  Secretary  of  State  for  the  Home  Department  to 
the  various  authorities  with  whom  he  was  in  communication,  to  "en- 
deavor to  discover  and  obtain  legal  evidence  of  any  violation  of  the 


29.  The    Kritich 

(■nvenuMfnt  took  ;ir- 
tivf  aiu)  sixinliiiii'iiiis 
im'iHiire.H  to  ju-iimrt' 
alt  priiper  iiill'iiiia- 
tion,  innl  to  pit-vnit 
breaclies  oC  tht-  law. 


imii 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


413 


Foreign-Enlistment  Act,  with  a  view  to  the  strict  enforcement  of  that 
Statute,  wherever  it  coiihl  really  be  shown  to  have  been  infringed." 
These  instructions  were  repeated  in  or  before  Ai>rii,  18(>.'3 ;  and  Earl 
Knasell,  when  communicating  that  fact  to  Mr.  Adams,  (2d  April,  18(53, 
Appendix  to  Case  of  United  States,  vol.  i,  page  500,)  stated  that  "  Iler 
Majesty's  Government  would  be  obliged  to  him  to  communiiiate  to  them 
or  10  the  local  authorities  at  the  several  ports  any  evi<lence  of  illegal 
acts  which  might  from  time  to  time  become  known  to  him." 

"Of  these  facts,"  says  the  American  Argument,  "no  evidence  is  found 
in  the  proofs  submitted  to  the  Tribunal."  Is  not  Earl  Itussell's  statement 
of  the  fact  to  Mr.  A<lams  evidence  ?  Is  his  veracity,  in  a  matter  which 
was  necessarily  within  his  knowledge,  disputed  ?  The  British  Govern- 
ment have  not  so  defilt  with  statements  made,  as  to  matters  within 
their  knowledge,  by  men  of  honor  in  the  public  service  of  the  United 
States. 

But  this  is  not  all.    There  are  facts  which  speak  for  themselves. 

In  the  case  of  the  Pampero  (which  was  afterward  seized  and  prose- 
cuted to  condemnation)  and  of  another  suspected  vessel  at  Glasgo\\', 
information  was  collected  by  the  Commissioners  of  Customs,  and  com- 
municated to  Mr.  Adams  by  Earl  ilussell  in  a  letter  of  the  21st  of 
ilan^ii,  18()3,  which  was  transmitted  by  Mr.  Adams  to  Mr.  Seward  in 
iinother  letter  dated  March  27,  18(),},  in  which  he  (Mr.  Adams)  used 
these  words:  "It  is  proper  to  mention  that  the  investigation  ai)pears  to 
have  been  initiated  by  his  Lordship,  upon  information  not  furnished 
froiri  t'ns  Legation;  an<l  that  his  communication  to  me  was  i)erfectly 
spontaneous."'  (Appendix  to  the  Case  of  the  United  States,  vol.  ii,  page 
203;  and  see  British  Appendix,  vol.  ii,  page  474,  &c.) 

The  circumstances  relative  to  the  Georgiana,  after  lier  arrival  at  Nas- 
sau, were  tirst  brought  to  the  notice  of  Ilcr  Majesty's  (Jovern meat  by 
information  (derived  from  a  New  York  newspaper)  which  they  received 
from  Mr.  Archibald,  the  British  Consul  at  Xew  York,  in  April,  1S(»3. 
This  infornmtion  was  followed  up  by  careful  and  spontaneous  incjuiries 
as  to  this  ship  and  as  to  another  vessel,  called  the  Soutli  Carolina,  said 
to  be  arming  in  the  Clyde,  neither  of  which  proved  to  be  intended  lor 
war.    (British  Appendix,  vol.  ii,  page  lo8.) 

In  the  case  of  the  Amphion,  respecting  which  a  representation  was 
first  made  by  ^Ir.  Adams  on  the  18th  of  Marcii,  1804,  iiKjuiries  had  been 
set  on  foot  by  IJer  Majesty's  (Jovernment  as  early  as  the  preceding  13tli 
of  .lanuary.  In  the  case  of  the  Hawk,  the  first  representation  made  by 
Mr.  Adams  was  dated  18th  of  April,  1804;  but  inquiries  had  been  pre- 
viously made  by  the  British  Government,  upon  information  received  by 
theuj  on  the  2d  of  April  from  the  Commissioners  of  Customs.  In  the 
case  of  the  Ajax,  as  to  which  no  representation  was  made  before  she 
sailed  by  the  American  Minister  or  Consul,  careful  iuijuiry  had  been 
made  by  the  Customs  Department  in  Ireland,  in  January,  180.> ;  their 
attention  having  been  called  to  the  slup  by  the  CiKist  Guard  oOieers. 
The  acttion  of  the  British  Government  to  prevent  the  Anglo  Chinese 
flotilla,  early  in  1804,  (as  to  which  no  obligation,  muni(Mi)al  or  interna- 
tional, was  incumbent  upon  them,)  from  falling  into  the  hands  of  the 
Confederates,  was  wholly  spontaneous  and  unsolicited. 

Furthermore:  In  every  case  in  which  iid'ormation,  however  unsuj)- 
ported  by  evidence,  as  to  any  suspected  vessel,  was  com- 
iiuniicated  to  Her  Majesty's  Government  by  Mr.  Adams,  or  <.m;rnm,„iiv,li'„'«ei 
otherwise,  a  strict  watch  was  directed  to  be  kept  on  the  ves-  m'n'v>,i,'''h'y'' ti," 
f'Cl,  and   speci.      inquiries  were  ordered  to  be  made  by  tiie 
proper  persons.    The  results  of  these  inquiries  were  reported,  in  every 


I 


L*       ' 


'* 


t 


414 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


!  .    !. 


:!'■  ^ 


f 


case,  to  Mr.  Adams  by  Earl  Kiissell.  In  a  preat  majority  of  instaneps, 
even  when  Mr.  Dudley  or  Mr.  Morse  (the  United  States  Consul)  liiul 
stated  and  reiterated  their  suspicions  and  belief,  with  the  utmost  con- 
iidence,  and  had  supported  it  by  hearsay  statements,  or  hearsay  deposi- 
tions, in  which  mention  was  often  nuule  of  the  connection  of  Captain 
Bullock,  and  of  the  firms  of  Fraser,  Trenholm  &  Co.,  Fawcett,  Preston 
&  Co.,  and  W.  C.  Miller  &  Sons,  or  one  or  more  of  them,  or  other  kiio^vn 
or  suspected  Confederate  agents,  with  tbe  vessels  in  question,  the  be- 
lief of  the  local  authorities,  that  the  law  bad  not  been,  and  was  not 
about  to  be,  infringed,  proved  to  be  well  founded.  In  the  cases  of  tlie 
Florida  and  the  Alabama,  inquiries  were  made  by  the  Custom-house 
oflicers,  among  other  persons,  of  the  builders  of  these  ships,  and  other 
information  was  obtained  by  those  oflicers,  which  was  duly  reported  to 
Her  Majesty's  Covernment.  Earl  Kussell  made  inquiries  ioiiceruing 
the  Florida  of  tiie  Italian  Government;  and  the  zeal  and  activity  of  tlie 
proceedings  of  Commanders  McKillop  and  Hinckley,  at  Nassau,  with 
respect  to  that  ship,  will  not  be  called  in  question.  It  was  by  means  of 
a  very  diflicult  investigaticni,  conducted  by  Her  Majesty's  Government, 
through  their  own  Agents  in  France,  Egypt,  and  elsewhere,  that  the 
evidence  applicable  to  the  rams  at  Birkenhead  was  brought  up  to  tlie 
point  necessary  to  establish  a  "reasonable  ground  for  belief"  that  those 
rams  were  really  intended  for  the  Confederate  service. 

Nor  is  there  any  trace  of  ]>roof,  in  any  part  of  the  voluminous  Ap- 
pendices to  the  Cases  and  Counter  Cvses  on  either  side,  that  the  various 
oflicers  of  the  Customs  and  other  civil  or  naval  authorities  to  whom  the 
duty   of  taking  proper  measures  lor  the  discovery  and  pre^'ention  of 
offenses  against  the  Eidistment  Act  was  intrusted,  neglected  any  proper 
means,  which  they  could  and  ought  to  have  used,  to  obtain  information 
or  evidence.    It  was  not,  indeed,  their  practice  to  search  out  and  inter- 
logate  all  persons  who  might  be  crimimUly  iujplicated  by  any  accusa- 
tion ;  because  such  persons  are  not  obliged,  by  British  law,  or  accord- 
ing to  the  general  principles  of  Justice,  to  answer  any  questions  tending 
to  criminate  themselves;  and  also  because  the  general  exi)erience  of 
those  accustomed  to  the  administration  of  the  law  is,  that  statements 
voluntarily  made  by  such  persons,  if  really  guilty,  are  not  likely  to  he  of 
assistance  in  the  discovery  of  truth.    Nor  was  any  general  system  of 
espionage    established ;   though,    on    what    were    considered    proper 
occasions,  (see  British   Appendix,   vol.  ii,   page  1G9,)  the  agency  of 
detective  officers  was  employed  by  the  municii>al  authorities  for  these 
purposes.     Such  a  general  system  would  be  contrary  to  the  genius  and 
spirit  of  British  institutions;  it  cannot  be  pretended  that,  to  establish 
such  a  system,  was  part  of  the  "  «liligence  due"  by  any  free  country  to 
any  foreign  nation.    But,  speaking  generally,  everything  was  done 
which,  in  the  usual  and  proper  course  of  the  civil  and  political  adminis- 
tration of  affairs  by  the  Executi\e  Government  of  Great  Britain,  ought 
to  have  been  done;  and,  if  these  means  were  not  sufficient,  in  all  cases, 
to  discover  and  prevent  (though  they  did  prevent  in  most  cases)  the 
violation  of  the  law,  the  experience  of  the  British  Government,  in  this 
respect,  was  only  the  ordinary  experience  of  all  Governments,  with 
respect  to  the  occasional  success  and  impunity  of  every  species  of 
crime. 

VIII. — Results  of  the  Adminhtrative  Syntem,  and  of  the  practice  wUh 
respect  to  evidence  of  the  United  States  in  similar  cases. 

In  a  question  of  due  diligence  between  Great  Britain  and  the  United 


BRITISH    SUPPLEMENTAL   ARGUMENT. 


415 


States,  it  cannot,  with  any  show  of  justice  or  reason,  be  con-  ^^  ^^^^^  .^  ^^^ 
sidcred  irrelevant,  that  tlie  general  system  and  principles,  i';;;j;:;;;.'Jf;f^^^^^^^^ 
with  respect  to  evidence  and  otherwise,  on  which  the  British  Z"y\''vJ''Zi!.rm". 
Governnient  acted  throughout  these  transactions,  were  sub- 
stantially the  same  as  those  which  have  been  usually  and  in  good  iaitli 
acted  upon,  in  similar  cases,  by  the  Executive  Authorities  of  the  United 
States.  A  neutral  Government,  though  it  ought  spontaneously  to  use 
all  proper  means  of  discovering  and  ineventing  violations  of  law,  which 
are  really  within  its  power,  may,  in  many  cases,  not  have  the  same 
means  of  knowledge  whi(!h  the  agents  of  a  foreign  Government  (to  w  hich 
those  illegal  acts  would  be  dangerous)  may  happen  to  possess  ;  and, 
when  its  information  proceeds  from  those  agents,  it  is  both  natural  and 
reasonable  that  they  shouhl  be  requested  to  furnish  evidence  in  support 
of  their  statements.  In  transactions  of  this  kind  (as  Mr.  DiuUey  stated 
to  Mr.  Seward  in  his  first  letter  abort  the  Florida,  February  i,  1SG2, 
with  respect  to  that  vessel)  "there  is  much  secrecy  observed;''  and, 
when  this  happens,  (as  in  ordinary  cases  of  crime,)  the  i)reventive  i>owers 
of  the  law  cannot  be  r-alled  into  activity,  without  souie  timely  informa- 
tion; and  the  persons  vho  give  that  information  are  usually  able,  and 
may  properly-  be  requested,  to  pioduce  son:e  evidence  in  its  sui»port,  if 
such  evidence  is  really  forihcoming. 

Mr,  Jefterson,  in  his  letti'r  to  Mr.  Hammond,  dated  theoth  September, 
1793,  (annexed  to  the  Tre  ity  between  Great  Britain  and  the  ^  ^^  ^  ^.  ^^ , 
United  States  of  the  10th  .November,  ITH-l,)  after  promising  i.ttn  Jis^pIeTX' 
to  use  all  the  means  in  the  jM^wer  of  his  Government  to 
r<!Store  British  prizes  captured  i»v  vessels  "  fttted  out,  arnjcd,  and 
equipped  in  the  ports  of  t!ie  United  States,"  and  brought  into  any  of 
those  ports  by  their  captors  after  theoth  June,  17!)'>,  and  acknowledging 
the  obligation  to  make  compensation  for  such  prizes,  if  such  means  for 
their  restitution  should  not  be  used,  added  the  following  just  aud  rea- 
sonable remarks : 

Instruct io:. 8  are  given  to  tbe  Governors  of  the  diffeiont  Stattis  to  nse  all  the  means  in 
tlieir  power  for  restorinj;-  prizes  of  tliis  last  descriiitiou  fonnd  within  their  ports. 
Tliouj>h  they  will,  of  eonrse,  take  measures  to  be  informed  of  (hem,  and  the  General 
Governnnmt  has  f^iven  them  the  aid  of  tlie  Cnstoni-honse  oftieers  for  this  ]>nri)ose,  yet 
.villi  will  be  sensible  of  the  imjiortanee  of  m.iltiplyingthe  channels  of  this  information, 
as  fur  as  shall  depend  vtn  yonrself  orany  person  under  your  direction,  in  order  that  the 
Governors  may  use  the  means  in  their  power  for  niakin<;  restitution.  Without  knowl- 
edfte  of  the  capture,  they  cannot  restore  it.  It  will  always  be  best  to  give  notice  to 
them  directly  ;  but  any  information  which  you  shall  bo  jdeased  to  send  to  me  also,  at 
any  time,  shall  be  forwarded  to  tlien\  as  quickly  as  distance  will  permit.' 

When  the  questions  of  comi>ensation,  claimed  by  the  owners  of  cap- 
tured British  ships,  which  had  not  been  restored  according  ^^  ^^  ^^  ^ 
to  this  letter,  came  for  decision  before  the  Commissioners  r •»'i  iri.Mr'i''r,t'"h 
under  the  Treaty  of  1794,  no  such  claim  was  allowed, exce:i)t  r;'',p'sip"'hyli* 
when  the  claimant  had  substantiated  his  legal  right  to  have  ( i'mir Tn'p  ii.'« 
the  prize  restored  by  a  regular  judicial  proceeding,  j)roi)erly  '"""" "' 
conducted  before  the  proper  Court  of  the  United  States;  which,  of 
course,  threw  upon  him,  in  all  such  cases,  the  burden  of  i)roving,  by 
logal  evidence,  the  illegal  outfit  and  annauient,  within  the  jurisdiction 
of  the  United  States,  of  the  capturing  vessel.* 

Extracts  are  here  subjoined  from  some  of  the  letters  of  the  various 
authorities  of  the  United  States  (to  which  reference  has  ;„  i,,,,,,,,,,  „,,,. 
been  already  nuide)  during  the  wars  between  Spain  and  •;■,';.■  "l„l,',',n,;;.r;',; 
rortugal,  and  their  revolted  Colonies  in  1816-1820 ;  and,  r;m.l;r'ulf.;,'b"«'"i 
iiiore  recently,  at  the  time  of  certain  designs  against  Cuba,  !;[';'eZ',';v*"i,'"'''iJJ«'i 
in  18(59.    These  will  be  fonnd  to  throw  some  light  upon  the  -"'•■"" 

1  Britieh  App.,  vol.  v,  p.  256. 

"  Case  of  the  Elizabetb,  British  App.,  vol.  v,  p.  319-338. 


fr  ■•13 


i?. 


J- 


li 


T»!W" 


416 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


|i'  I 


functions  and  powers  of  the  District  Attorneys  and  Marshals  of  the 
United  States,  and  on  the  practical  rnles  by  which  the  exercise  of  their 
functions  and  powers  has  always  been  governed. 

On  the  4th  September,  1810,  Mr.  Glenn  (District  Attorney  for  Mary, 
land)  wrote  to  the  Spanish  Consul,(Chacon,)  in  answer  to  certain  ropie- 
sentations  made  by  him : 

I  ninst  beg  leave  to  Hiifjgtsst  that  my  powers  are  merely  lefjul,  ami  not  politii  al.  I 
have  already  the  power,  when  I  am  offmaUy  informed,  in  a  Irijal  manner,  of  ani/  nO/d/m,; 
of  the  laws  of  (he  United  States,  to  iiiHtitiito  a  prosecution  against  tiie  ofi'eiulers,  and  cdn- 
(inet  the  same  to  a  Hnal  issue;  and  I  hope  I  shall  always  be  ready  and  willing  to  ;;() 
thus  far  on  all  |)r»)per  oceasions.  If  an  armament  be  fitting  out  within  the  district  m 
Maryland  for  the  purpose  of  cruising  against  the  subjects  of  the  King  of  Spain,  it  is  n 
bn'aeh  of  our  laws,  and  the  persons  concerned  therein  are  liable  to  punishment;  hm- 
hefore  1  can  take  any  legal  steps  in  the  affair,  the  facts  of  the  cane  mnst  he  supported  hij  nffuh- 
vit  taken  hefore  some  Judge  or  Justice  of  the  Peace,  and  when  that  is  done,  1  will,  witlumr 
delay,  proceed  to  call  upon  the  ott'enders  to  answer  for  a  breach  of  our  laws.  //,  then- 
fore,  you  will  be  pleased  to  furnish  nie  with  the  names  of  any  witnesses  who  can  make,  out  Un- 
ease which  yon  hare  stated,  I  will  at  once  have  them  summoned,  if  within  the  reach  ni' 
the  process  of  our  Judges  or  Justices,  and  attend  to  taking  their  depositions,  or,  if  you 
have  it  in  your  power  to  bring  within  this  district  any  persons  who  can  testify  on  the 
cases  referre<l  to,  I  will  bo  prepared  to  receive  the  statements  on  oath  as  the  fomiilu- 
tion  for  a  Judicial  in(iniry  into  the  conduct  of  the  offenders.  /  xhall  here  take  ovamioii  tu 
say  that  I  cannot  2)roceed  in  the  cases  you  hare  mentioned  upon  the  mere  suggestion  of  m'lf 
person,  unless  that  suggestion  he  accompanied  hy  an  affidarit.  (Documents  acconipauyiu^' 
the  Counter  Case  of  the  United  States,  part  ii,  pages  39,  40.) 

On  the  2otIi  February.  1817,  the  same  District  Attorney  wrote  to  'Slv. 
Monroe,  Secretary  of  State : 

You  are  well  awai'e  /  cannot  proceed  to  arrest  persons  and  proceed  under  the  laws  of  n\if 
country,  for  a  breach  of  those  laws,  upon  a  mere  suggestion  alone  ;  hut  whenever  a  sugyention 
shall  be  accompanied  by  anything  like  proof ,  I  will  take  great  pleasure  in  proscculiiig  th>! 
offenders  to  piniishmcnt,  and  their  proi»erty  to  coudennmtion,  in  all  proper  casus. 
(Ibid.,  pages  5.5, 56.) 

On  the  iJSth  March,  1817,  Mr.  Eush  (Acting  Secretary  of  State)  wrote 
to  Mr.  Mallory,  Collector  of  Customs  at  Noifolli,  directing  him  to  make 
iu(piiry  into  tlie  cases  of  two  armed  ve.s.sels,  tlie  Independence  of  the 
South  and  the  Altravida,  which  had  then  lately  arrived  at  Xorfolk 
from  voyages,  in  the  course  of  which  they  had  cruised  against,  ami 
m.'ide  captures  of,  vessels  or  property  belonging  to  the  subjects  of  the 
King  of  Spain. 

If  [said  Mr.  Rush]  there  be  any  proof  of  their  haring  committed,  or  of  their  inteiKruni 
to  commit,  an  infraction  of  any  of  the  laws  or  Treaties  of  the  United  States,  you  will  caiisi; 
prosecutions,  subject  to  the  advice  of  the  Attorney  of  the  United  States,  to  bo  insti- 
tuted against  all  [tarties  concerned,  or  such  other  legal  steps  taken  as  events  may  uiiike 
necessary  and  justice  retjuire. 

And  on  the  same  day,  Mr.  Eush  also  wrote  to  Mr.  MacCullocli,  Col- 
lector of  Customs  at  Baltimore,  directing  inquiries  to  be  made  as  to 
another  vessel  called  the  Congress : 

If  [he  said]  there  be  any  sufficient  proof  that  this  vessel  either  has  committed,  or  llw! 
she  intends  to  commit,  a  breach  of  any  of  the  laws  or  Treaties  of  the  United  States,  ymi 
will  advise  the  District  Attorney,  and  cause  pro.secutions  to  be  forthwith  instituted 
against  all  parties  concerned,  and  such  other  steps  taken,  whether  with  a  view  topnmd 
or  punish  offenses,  as  justice  requires,  and  the  laws  will  sanction. 

On  the  11th  of  April,  1817,  Mr.  Collector  Mallory,  having  been  re 
quested  by  Don  Antonio  Vilialobos  to  detain  the  Indepencia  del  Sml 
and  the  Altravida,  and  certain  goods  (in  fact,  prize  goods)  lauded  from 
that  vessel,  for  alleged  violation  of  the  Act  of  Congress  of  1794,  answered 
by  the  request — 

That  I  may  have  the  aid  of  every  light  to  guide  me  which  facts  can  afford,  ■aiid  «* 
the  allegations  made  by  you,  in  an  official  form,  must  be  presumed  to  be  bottomed  oh  potiiif 
facts  which  have  come  to  your  knowledge,  you  will  have  the  (joodness,  I  trust,  to  furni>ih  nn: 
with  evidence  of  their  existence  in  your  possession. 


mn 


BRITISH    SrPPLKMKNTAL    ARGUMENT, 


417 


ala  of  the 
seof  their 

7  for  Mary- 
tain  ropre- 

t  politiiiU.    I 
'  anil  viiilal'wii 

ItM'S,  i>ll»l  Cdll- 

rvillinj;  to  i;o 
the  (Ustriet  ui 
fSiiain,  it  isu 
iiislmifnt ;  hue 
lorttd  h\j  >iffi(\a- 
will,  witlumt 
tws.  //,  ihm- 
an  make,  out  //it 
I  tho  voiU'li  III 
ions,  or.  if  ymi 

I  testify  on  tlu; 
as   the  fomiilii- 

takc  occunioii  to 
(Klintion  of  ni'ij 
I'accoinpauyiii^ 

wrote  to  :Mr. 

)•  Ihe  laws  of  nnr 
\cvcr  a  Kiifliicxt'm 
prosecnt  iug  tli-! 

II  proper  cusls. 

State)  wrote 
liiiii  to  make 
(lence  of  the 
lI  at  Norfolk 
against,  and 
bjects  of  tlie 

their  viiemUn'j 
I,  you  will  ciiuse 
Ites,  to  bo  iiisti- 
^euts  may  iiuike 

iCnlloc.h,  Col- 
made  as  to 


[ommiml,  or  Ik'- 
\\Uh\  States,  yoij 
Uvith  iiistituteil 
[a  i-icti'  '0  i>''«*'''"' 

[ing  been  ve- 

licia  del  ^lul 

lauded  from 

f94,  answeietl 

In  afford,  and  «* 
itomed  on  pontK'' 
\st,  to  ftirnUh  /«' 


Tiie  Spaniard  replied,  (12  April,  1817  :) 

With  reniud  to  the  evidence  you  re(|nirc.  I  will  not  hesitate  to  say  that.  Jis  the  fiict.H 
1  liiive  stilted  are  mutter  of  pnhiie  notoriety,  kimwn  to  evtjryhody,  and  1  hiul  no  reason 
Id  .siil>l>ose  yon  were  ignorant  of  them,  1  did  not  deem  it  ineumhent  upon  me  to  add 
;iiiy  proof  to  the  simide  narration  of  them;  and  I  was  conddent  that,  l»y  K"'"n  '^"  **' 
Hiiiiit  out  to  you  the  stipulationa  and  laws  which  are  infringed  in  eonseiiuc^iue  of  these 
i;ietH,  you  would  think  yourself  authorized  to  interfere  in  tlu-  nuinner  re<iueHted, 

He  then  mentioned  several  circumstances,  justifying  (as  bethought) 
;i  .strong  presumption  of  illegality  against  tho.se  ves.sels,  as  "  known 
tiuts,"  and  added : 

If  tlu'.se  puldie  facts,  fallinji;  within  the  kiu)wled}je  of  every  imlividnal,  require  more 
nKMif  than  the  public  notoriety  of  them,  I  iinist  reciuest  to  be  informed  as  to  the  nature 
it  that  proof, . 'in d  also  whether  you  are  not  warranted  to  act  upon  just  Ki'ounds  of  sus- 
iiidon,  withiMit  that  positive  evidence  which  is  only  necessary  before  a  Court  of  .Justice. 

Mr.  Mallory  rejoined,  (14  April,  1817:) 

From  the  view  I  have  taken  of  the  facts,  as  now  strted  by  you,  which  it  is  to  be 
pivsiimed  are  to  bt!  ie;jar<led  as  sp(!cilications  under  the  more  j-eneral  charges  set  forth 
III  your  letter  of  the  10th  instant,  I  must  really  confess  I  do  not  at  present  see  grounds 
-iiliicient  to  justify  the  steps  you  require  me  to  take  against  the  armed  vessels  now  in 
iliis  i)<)rt,  an<l  the  merchandise  which  has  been  permitted  to  be  landed  from  them  and 
ilupositecl  in  the  public  store. 

He  then  observed  that,  if  the  facts  alleged  as  to  the  original  equip 
iiieiit  of  the  Independencia  were  to  be  taken  as  true,  they  did  not  clearly 
1)1  luiequivocally  prove  that  her  original  eqni|>ment  in,  or  dispatch  from. 
the  United  States  was  unlawful;  and,  witit  respect  to  a  subsequent 
alleged  enlistment  of  men  in  the  port  of  Norfolk,  he  stated  that  he  was 
engaged  in  inquiries,  in  order  to  be  satisfied  ui>ou  that  point  before  the 
vessel  was  i)ermitted  to  sail,  aiul  to  be  governed  by  the  result,  "  al- 
though," he  .said,  "  it  does  not  appear  to  be  perfectly  certain  that  such 
an  augmentation  of  their  force  is  interdicted  by  the  Act  of  Congress  of 
the  3d  of  March  last,  which,  being  a  law  highly  j>enal  in  its  nature,  will 
admit  of  no  latitude  of  construction.  (liritish  Ai)pendix,  vol.  iii,  pages 
112-114.) 

This  correspondence  has  the  more  interest,  as  relating  to  the  cavse,  in 
«lmh  the  legality  of  the  dispatch  of  the  Independencia  (fully  armed 
ami  equipped)  from  an  American  port  to  Buenos  Ayre.s,  for  sale  there 
to  the  belligerent  CJovernment  of  that  revolted  colony,  and  the  illegality 
of  her  subsequent  anguientation  of  force,  became  the  subject  of  decision 
hy  Mr.  Justice  Story  in  the  well-known  prize-suit  of  the  Suntissima 
Trinidad. 

On  the  l(>th  September,  1817,  the  Spanish  Consul,  Mr.  Stoughton, 
wrote  to  Mr.  Fisk,  (District  Attorney  for  New  York,)  stating  a  case  ol 
illegal  enli.stment  of  men,  then  alleged  to  be  in  progress  on  board  a 
Venezuela  privateer  schooner  called  the  Lively,  or  the  Anuiricano 
Libre : 

Now,  [he  said,]  as  there  must  be  provisions  in  the  laws  and  Ti'eaties  of  tlu!  United 
^tiiti's  vesting  an  authority  in  some  of  its  olTicers  to  i)revent  the  ecinipiiient  of  v»!S.sel!^ 
mil  the  enlistment  of  men  in  the  United  States,  I  make  this  application  to  you,  most 
iiiKfiitly  n-questing  you  to  take  whatever  measures  may  be  necessary  immediately,  hi 
"rf'T  to  previ'tit  the.  departure  of  the  aborc  vesnel,  at  least  until  she  shall  ifire  hondn  that  xhe 
"ill  not  commit  hostilities  against  Spanish  suhjrcts.  The  ressel,  it  is  said,  irill  sail  to-morrow 
'Mniin<i.  Indeed,  if  an  inquiry  were  instituted,  I  am  induced  to  believe  the  above  brig 
\vmild  be  found  to  be  a  pirate. 

In  support  of  this  application,  two  depositions  of  per.sons,  who  stated 
that  attempts  had  been  made  to  induce  them  to  enlist  on  board  the 
\e.s8el  in  question,  were  sent  on  that  aud  the  following  djiy.  Mr.  Dis 
frict  Attorney  Fisk  replied,  on  the  17th  September,  1817  : 

I  have  duly  r«}ceived  your  notes  of  yesterday  evening  and  of  this  dav,  and  have 
27  c 


«  Y:  ■■'■■ 


k'« 


'■t 


418 


SrrPLEMKNTAKY    AlKSUMKNTS    ANI»    STATEMKNTS. 


'•I 


■«» 


^!< 


ri'f»Mr«'(l  to  tlic  statiitt'H  |»ioviiliii>{  for  tlio  piiiiislinu'iit  ot'  tln)  i)tl'«MiHt'H  HtiittMl.  h  ;>  ,„/ 
a  cam;  from  thf  indetwe  mttiliomd,  that  ivoiild  jiiHliJij  Ihf  Colhctar  in  (hluiiihi;/  Ihr  nxrri, 
llw  iij^mt'HHion  \H  to  1x1  iiimislitMl  in  tin*  ordimirv  mode  of  |ir«N«'ciitiiij?  those  wlio  im 
•;iiilty  of  iiiiN<l(!iii<>aiioi'H.  Outli  Ih  to  bci  iiitHle  of  tliH  i'iu;tH  by  tin*  (^onipliiiiiiiiit,  uii.i 
t'liti'i's  into  11  nM'o^iii/aiic)!  lo  appear  uiid  pi'oseeiite  tlie  olfeiiders  liefore  any  jnocess  cn; 
iwHue.  Tliiw  oath  lieinjf  made  and  r(!C'oj;hizan<!«i  taken,  tlie  .indjje  of  tlie  diieiiii  ('dint 
will  issne  ii  warrant  to  apprehend  tlie  aeeiiNcd,  and  lirin^;  tlu-in  before  liiin,  to  lie  I'urtin  i 
dealt  with  aeeordiny  to  law.  When  ai>prehended,  it  is  the  jirovince  of  the  Att(iriii\ 
of  the  I'nited  States  to  (Hindnet  the  proseenti(Mi  lo  jndynient.  1  have  no  anlhorify  t" 
administer  an  oath,  or  to  issne  ii  warrant,  nor  hare  I  the  power  to  iHxur  otnj  jtrim-t,  ;,, 
iirrtHi  and  dttain  the  xrnnvl  in  tinvnlion,  nnlvnx  by  the  direction  of  tin  Hsevntirc  oflitrr  of  ih, 
I'nited  StdlcH.  »  •  *  ]\y  ailveitinf^  to  the  statutes,  it  will  be  Heen  thai  Uie  vessel  i^ 
not  lialtlt)  to  sei/jire  for  the  ael  of  any  |>erHon  enlist injj;  himself  lo  ^o  on  boani,  or  Un 
hirinj;  or  retaining;;  anotlier  person  to  enlist:  the  jinnixlimcnt  in  pernonal  lo  the  offtmlii-^. 
'  *  '  It  is  inipntclieahlcfor  me,  or  for  any  other  officer  of  the  I'nited  Stiiten,  lo  /«/,(  /m,; 
lef/al  menmircx  af/ainxt  aiii/reHsors,  npon  the  indefinite  ntulement  of  ctrtain  perxonn  heiiKj  ivi<. 
rerned  in  an  illef/al  tranxaelion.    (Ilritish  Ai»pe,ndix,  vol.  iii.  jip.  ll'J,  liid.) 

Tiiis  i>r«'ce(lent  will,  it  is  trusted,  be  borne  in  iniiid  wheiie\  er  the  Arlii 
triit(»rs  may  have  oec.isioii  to  eonsider  the  (|nestioiis  (ioniieeted  witli  tin 
eiilistiuent  ot  certain  men  on  board  tlie  Shenainloah  on  tlie  nijjht  of  the 
dei)artnre  of  that  vessel  from  Melbourne  in  18(54. 

On  .'iOth  September,  1.S20,  Mr.  Se(;retary  Adams  wrote  thu.s  to  tin 
l*ortu{>uese  Minister,  the  Chevalier  de  Sena : 

The, judicial  jiower  of  the  rnited  Slat<'s  is.  by  their  C'onslitntion,  vested  in  their  Sii- 
prenie  Conrt  and  inTril)nnals  snbonlinate  lo  the  same.  'Jlie  .Indf-esof  these  'I  liliniial- 
are  amenable  to  the  eonntry  by  impeachment,  and  if  any  I'ortnf^nese  snliject  m^ 
snti'ered  by  the  act  of  any  eitizen  of  tins  United  States  within  their  jnrisdictioii,  it  i> 
before  these  Tribnnals  that  llni  remedy  is  to  be  sonfjlit  and  obtained.  For  any  iulsm 
eiti/.ens  of  the  IJjiited  States,  eommilteil  ont  of  their  .jnrisdietioii  and  beyoiid  thtii 
control,  tin'  (lovernnn-nt  of  tin-  United  Stales  is  not  resixinsible.     *     *     * 

The  (lovernment  of  the  United  States  have;  neithei'  count<'nanced  nor  iiermitteil  jiiiv 
violation  of  their  nenlrality  by  their  citizens.  They  hav(?,  hy  rarionn  and  miccennitr  mt- 
of  legislation,  manifested  their  constant  earnestness  to  fiiUill  their  dnties  lowanl  ;ili 
parties  to  that  war.  They  hare  reprenncd  erery  intended  riolntion  of  them  which  iiiix  lui" 
broiiyht  before  their  Coitrtn,(tnd  unbulanliatcd  by  lextimony,  conformable  lo prineiplea  ric<i(jiti:ii! 
by  all  Tribunalx  of  a  xiwilar  inrixdiclion.     (ISrilish  Appendix,  vol.  iii,  pp.  l.')7,  i't;-'.) 

On  the  14th  May,  1809,  Mr.  Hoar,  Attorney  (leneral  of  the  Uiiitcil 
States,  thus  instructed  Mr.  Smith,  District  Attorney  for  IMiiladelpliiii: 

U'henerer  complaint  ix  made  ayainxt  any  vexxel  on  Irnxtworthy  eridencexnfficient  loestdMi^h 
before  a  (Jourt  of  Jnxtice  probable  eanxc  to  beliere  that  xtieh  re.xxel  ix  forfeitable  for  a  mlu- 
lion  of  the  Xcutrality  Laws,  you  are,  instructed  to  lile  a  libtd,  and  arrest  the  vi'svi 
(Documents  accompanyinjf  the  Counter  Case  of  the,  L'liiti'd  States,  Part  iii,  p.  7i:i.i 

On  the  17th  ]May,  1801),  >rr.  IMerrepoint,  District  Attorney  of  Xew  York. 
wrote  to  Mr.  Attorney-General  Hoar  with  respect  to  certain  vcs.sds 
called  the  Memphis  and  Santiago,  accused  of  a  hostile  destiiiation 
against  Cuba: 

There  in  no  evidence,  an  yet,  on  which  to  detain  them.  I  would  sugj^est  that  if  the  Spun- 
ixh  Minixtcr  would  inxtruct  the  Spanish  Conxnl  here  to  take  some  pains  and  collect  xoim  ci 
dcnce  relating  to  these  nrnttcns,  and  bring  it  to  my  notice,  1  shall  act  with  the  gnati-! 
proni]>tne.s8. 

On  the  11th  May,  180!),  Attorney-Cxeneral  Hoar,  forwarding  this  let  | 
ter  to  Mr.  Secretary  Fish,  said: 

The  several  District  Attorneys  are  instructed  that,  whenerer  Hufflcient  evidence  in  »"«"  | 
known  to  them  to  establish  before  a  Court  of  Justice  probable  cause  to  beliere  that  any  n'"' 
is  forfeitable  for  a  violation  of  the  neutrality  laws,  they  are  to  file  a  libel  ami  arrest  tin  I 
vessel.     (Cuban  Corresponclenco,  18(50-71,  presented  with  the  American  Coiintor  t'iise.| 
pp.  .'-,8,  .^.<».) 

On  the  same  day,  Mr.  Attorney-General  Hoar  sent,  as  general  instriK 
tions  to  the  United  States  Marshals,  a  copy  of  a  letter  addressed  outluj 
20th  of  May  to  the  Marshal  for  the  Southern  District  of  :Sew  York.j 
which  contained  the  following  passage: 

It  is  not  deemed  best,  at  present,  to  authorize  or  ref/uire  you  to  employ  deteclitex  for  "' 
special  purpose  of  discovering  violations  of  the  provisions  of  this  Act,   (the  Act  of  Coiigro!- 


rs. 


BRITISH    .SUri'LKMENTAL    AKOUMKNT. 


4i:) 


llttMl.       ll   if    mil 

ihihiii  tlii'  (•(« »/, 

tlulSf  wild   illi- 

i)])l!iinsiiit,  wli.i 
liny  inoccsH  imi; 
('  Oiiciiil  Coiut 
III,  tolif  t'urtlir: 
tf  thi'  Att(irii<\ 
no  mitlidiity  t'> 
II-  itiiji  ;)»•'»•(. If  u, 
livr  olfinr  nf  lln 
ml  tiu'  vt'sscl  is 
)ii  hiianl,  <))'  till 
/()  llir  tifdtdd^. 
la  ten,  III  (((/.(  (Ill;/ 
erxoun  hrliKi  (om- 
.) 

iMor  tln'  Ai'lii- 
it'tt'il  ^vitll  tlif 
e  J»i{jflii  of  till' 

'  thus  to  tilt 

cstcil  in  tlicir  >ii- 
>i  tlii'M'TiilmiKil- 
U'sc  siiliji'i'l  ii:i> 
jiuisdictiiiii,  it  i- 
Fov  any  iiri-"i 
md  beyniiil  thiii 
*     # 

lor  ponnittfil  iuiv 
(tiiil  niii'ccnniri  (Id 
Intit's  tiiwanl  iiH 
cm  which  hiiK  /'(" 
hiciplcn  yccoijnr.iif 

of  the  United 
Miihuk'lpliiii ; 

uffirictif  locatabM' 
'ciliiblc  for  if  ••i'l'"- 
arrest  the  vcsxl 
,rt  iii,  1>.  ■Ji.i.  1 

of  New  York. 
[ertaiu  vessi'lsj 
he  destination 

ttliat  if  IheSpmi; 

\d    collect    WHK  (H- 

ritli  tlu'.  <;ri':iti-! 

Irdiujl  this  let- 


it  endouc  is  ""H" 
Jitrfi  //irt(  flHi/  n-'i' 
Icl  and  iivri'st  tlir 
]an  Counter  Case 

leiieral  instnif 

Idressed  on  tlif 

)f  New  York. 

(MectireH  for  ">' 
Act  of  Viiaff''' 


„(  1«1H;)  hill  j/oii  ntid  i/oiir  dcpiilUx  air  cj/nrtcd  to  icccin  nil  iiifininalion  that  innii  he  of- 
;,ii(/,  ami  to  luMittniitivo  (o  all  iiiatti'r.s  of  siis|iicion  that  iniiy  coiiir  to  your  kiiowiciljj.- ; 
iiid.  ill  casfs  \vli*>rb  your  aittion  is  rf<|iiiri'(l,  to  lie  vigilant,  proin|it,  anil  clliciciit.  1 
lilltlianU  yon  to  eoininnnifatt;  to  iiic,  from  tiiiii' to  tiiin,  any  inforiiiaMon  that  yon 
,ii;ty  (It'cni  ft'iistvvorthy  iiiul  iin|iortant. 

()ii  tlie.l'.Stli  Deeeiiiber,  1S7(),  Mr.  Fisli,  Secretiuy  of  Htate,  wrote  thus 
to  Mr.  Roberts,  tlie  Spanish  Minister: 

Tlic  iin(lorHi<i;ne(l  takes  Die  liberty  to  call  the  attentitni  ol  Mr.  KoUeits  to  the  fiKt 
tiiat  a  District  Attorney  of  the  United  States  is  an  of(i<!er,  whose  duties  are  i'e;;iilated 
liv  law,  and  who,  in  the  iilisenco  of  executive  warrant,  /km  ho  riifhl  to  dclaiii  the  rcxxih 
,if  American  vilizeiiH  without  hijat  jiroofn,  founded  not  npon  unrmiHex,  or  npon  Ihcaiileccdenl 
\iiraeler  of  a  rexncl,  or  h}ioh  the  lielief  or  conrietioii  of  a  Cousnl,  hut  upon  proof  .iiihiniltnl 
iiiwrdinij  to  the  foriiw  required  hij  law.      (Hritish  Counter  Case,  pajic  id.) 

Tliese  extracts  are  eonceivetl  to  sliow  that  the  prineipk's  atul  rules  of 
IHiictiee  of  the  Executive  authorities  of  tlie  United  States,  as  to  tiu-ev- 
iileiice  necessary  to  constitute  "  reasonabU'  j;round  for  belief,"  that  any 
itlejial  equipment  has  been  niacU^  or  is  beinfj;  attempted  within  tlu'ir  Jii 
lisdiction,  and  to  call  f(U'  "  dilif^em^e"  in  the  use  of  the  prtiventiv** 
liowers  of  their  law,  have  always  been,  and  still  are,  essentially  the  sam** 
witli  those  on  which  the  (lovernment  of  (Ireat  Britain  acted  duriii};'  the 
transactions  which  are  the  subject  of  the  present  in<piiry. 

Alter  these  instances  of  the  practi(!e  of  the  Tnited  States  in  similar 
iiist's,  it  seems  hardly  ue(!essary  to  recur  to  the  extraordi-     ;^.,  ,„  ,i„,  ,„„,.. 
nary  suf;;j;estion  of  Mr.  J)udley,  adopted  in  the  American  Ar-  !;r','i,,!';;,',,!,',i;,!rJ,'..'. 
;iiinent,  ([)age  44,)  that  whenever  the  American  Consul  at  linn"ilp,H''!7i;,,.u 
Liverpool  told   the  JJritish  authorities  that  "  he  had  no  ':i,.T'l"L!t  /:"!. 
ilaiibt"  about  the  character  of  a  particular  vessel,  they  '"'""• 
misht  to  have  accepted  this  as  snllicient  till  the  contrary  w'as  shown, 
.111(1  not  to  have  thrown  the  burden  of  proof  upon  the  persons  jiivinj*- 
the  inforuuition  ;  that  "  the  (JovernnuMit  ought  to  investigate  it,  and  not 
lall  upon  us  for  proof."     It  was  indeed  »piite  right  and  proper  that  the 
(itliwrs  of  the  British  Government  should   investigate  every  case  of 
wliicli  they  were  so  infornuMl  for  themselves,  as  well  as  they  were  able ; 
ami  this  is  what  they  actually  di«l  on  all  occasions.     But  the  iJritish  aii- 
tlionties  at  Liverpool  hatl  too  frecpient  experience  of  the  error  and  falhu-y 
ot  Mr.  Dudley's  conclusions,  drawn  from  the  association  with  particular 
vessels  of  firms  or  persons  known  or  believed  to  be  in  the  Confederate 
interest,  to  make  it  i)t)ssible  for  them,  as  reasonable  men,  to  iwX  upon 
Mr.  Dudley's  charges  as  snllicient  to  throw  the  burden  of  i)roof  upon 
the  parties  accused,  even  if  such  a  principle  had  not  been  o|>posed  both 
to  British  and  to  American  law.     hi  August,  1801,  the  American  Con 
suiat  Liverpool,  through  Mr.  Adams,  denounced  the  Bermuda  as  an 
•armed  steamer,"  which  was  "believed  to  be  about  to  be  dispatched 
[with  a  view  of  making  war  against  the  people  of  the  United  States," 
and  which  was  "ostensibly  owned  byL'raser,  Trenholm  &  Co."  (British 
Appendix,  vol.  ii,  page  133.)     Mr.  Adams,  writing  to  Mr.  Sew  ard  on  the 
iOtii  August,  1801,  said :     "  No  stronger  case  is  likely  to  be  made  out 
iia:aiii.st  any  i)artie8  than  this.     The  activity  of  our  (Consuls,  Messrs. 
Wilding  and  Davy,  furnished  me  with  very  exact  information  of  all  the 
|m'cumstances  attending  the  equipment  of  this  vessel,  and  yet  Her  Maj- 
esty's Government,  on  being  apprised  of  it,  disclaimed  all  power  to  in- 
|t«rtere."  (American  Aj)pendix,  vol.  i,  page  518.)    The  Bermuda,  ne\er- 
jtheless,  turned  out  to  be  an  ordinary  blockade-runner.     In  March  and 
April,  1S03,  a  ship  called  the  Phantom,  building  at  Liveri)ool  by  W. 
Miller  &  Son,  for  Fraser,  Trenholm  &  Co.,  and  8U[>plied  with  engines 
jl>y  Fawcett,  Preston  &  Co.,  at  the  launch  or  trial  trip,  of  which  Captain 
piillock,  Mr.  Tessier,  and  Mr.  R.  Hamilton,  &c.,  were  present ;  and  an- 
other ship  called  the  Southerner,  building  at  Stockton  for  Fraser,  Tren- 


i 


,   1 '  V  -:1 

1  ff  ^ 


ilsi 


IF^ 


42(1 


HlIl'I'LKMKNTAUY    AWMMKNTS    AM)    STATEMKNTS. 


lioliM  «Sc  Co.,  and  meant  to  b«>  comnianiU'd  l)y  Captain  Biitolicr,  \v(>r<'  i 
like  inanncr  denounciMl.  Atlidavits  of  the  eonnoction  of  tliosc  flims 
and  pt'isons  witli  the  ships  were  fnrni.^jhed;  and  tlie  accusations  wci,. 
piessed  with  jjreat  peitiinicity,  even  after  Mr.  Sfpnuey,  tlie  lejjal  advisn 
of  .Mr.  l)n<lley,  at  Jiiverpool,  had  admitted  that  (as  to  the  Phantom 
there  was  no  ease.  AI»ont  the  S«)ntlierner,  Mr.  Dudhiy  atlirmed,  fron, 
tlie  l)ej{innin;j,  with  the  utmost  positiven«'ss,  that  '•  there  was  no  doiiht," 
And  yet  it  turned  out  that  the  charges  as  to  both  these  vessels  Mw 
were  wholly  pfroundless.  notwithstandinj?  the  interest  in  them  of  tliov 
tirms  and  persons,  whose  very  names  seem  to  have  been  supposed  li\ 
the  Consuls  of  the  United  States  to  be  sullicient  primuj'ncie  evidi'iUT 
of  a  vi(dation  of  the  law.  The  Phantom  proved  to  be  a  blockade  iim 
ner,  and  the  Southerner  to  be  a  passeufjer-vessel,  whose  iirst  eaiploy 
ment  was  to  carry  Turkish  pilgrims  in  the  Mediterranean.  (]!riti>li 
Ai)pendix,  vol.  ii,  pages  1({7-Ii0!>.) 

With  respect  to  the  value  of  the  suggestions,  In  the  Argument  of  tin 
United  States,  that  certain  parts  of  their  administrative 
Hiii'i.v'iVi'h'rAnV.V  machinery  (such  as  the  employment  of  District  Att()riU'y>. 
1  'T/rjVnn.'V,'.'  and  tlui  encouragement  ottered  to  informers  by  the  law, 
which  gives  them  half  the  forl'eitures  obtained  by  tluii 
means)  are  more  etlective  than  the  practice  of  Great  liritain,  luidd 
which  the  Attorney-deneral  is  (in  I'^ngiund)  the  only  public  proseciUid, 
and  no  share  of  any  forfeiture  under  the  Foreign-Enlistment  Act  i« 
given  to  inforn-.ers;  light  may  also  be  derived  from  the  precHMlinycx 
tracts.  On  these,  however,  and  all  similar  points,  (giving  to  the  aiitlioi 
ities  of  the  United  States  the  credit  which  they  claim  for  using  siitli 
l»reventive  powers  as  they  i)ossessed  in  good  faith,  and  with  what  tlicv 
deemed  due  diligence  for  their  intended  i)nrpo.ses,)  no  evidence  can  !>• 
more  instructive  than  that  of  practical  results. 

Between  the  years  1.S15  and  1818,  (notwithstanding  everything  wliidi 
the  Executive  of  the  United  States  (toiud  do  to  the  contrary,)  tweiitv 
eight  vessels  were  armed  or  equipped  i  ;,  ;,  d  dispatched  fiom,  the  iH)it> 
of  the  United  States,  or  within  their  Jurisdiction,  for  privateeiiii;; 
against  Si»ain,  viz,  seven  at  New  Orleans,  one  at  Barrataria  in  tin 
Onlf  of  ^Mexico,  two  at  Charleston,  two  at  Philadelphia,  twelve  at  l?;il 
timore,  and  four  at  New  York.  (See  the  list  furnished  by  the  Spanish 
.Minister,  Appendix  to  British  Case,  vol.  iii,  page  132.) 

In  the  years  181(i  to  181J>,  twenty-six  ships  were  armed  in  and  (li> 
patched  from  Baltimore  alone  for  privateering  against  Portugal.  (Let 
ter  from  Chevalier  de  Serra,  November  2.J,  1819.     Ibid.,  page  1.')').) 

In  the  period  between  181G  and  1828,  sixty  Portuguese  vessels  weiv 
captured  or  plundered  by  privateers  armed  in  American  ports,  and  the 
ships  and  cargoes  appropriated  by  the  captors  to  their  own  use.  (Letter 
from  Senhor  de  Figauiere  e  Morao.     Ibid.,  page  105.) 

The  Proclamation  of  President  Van  Buren,  of  the  5th  of  Janiian. 
1838,  stated  that  information  ha<l  been  receeived  that,  "  notwithstand 
iug  the  Proclamation  of  the  Governors  of  the  States  of  New  York  ami 
Vermont,  exhorting  their  citizens  to  refrain  from  any  unlawful  a('t> 
within  the  territory  of  the  United  States,  and  notwithstanding  the 
presence  of  the  civil  officers  of  the  United  States,  *  *  *  jirins  ami 
munitions  of  war  and  other  supplies  have  been  procured  by  the  (Caua 
dian)  insurgents  in  the  United  States ;  that  a  military  force,  consisting 
in  part,  at  least,  of  citizens  of  the  United  States,  had  been  actually 
organized,  had  congregated  at  Navy  Island,  and  were  still  in  arms  uudei 
the  command  of  a  citizen  of  tlie  United  States,  and  that  they  were  cou 
stantly  receiving  accessions  and  aid." 


lUnriHH    HrrPLKMENTAK    AWOl'MENT. 


4-21 


Oil  the  10th  March,  l.s;J8,  a  tiMiiporary  Vet  of  < 'oiiKn'Hs  was  passiMl  to 
provicU"  for  more  elHcaciioiiH  aetioii  in  repr«'.ssiii{;  tliese  outrages  tliaii  was 
jirovided  by  the  Act  of  181S. 

Nevertheless,  on  tliel'lst  November,  IS.'JS,  President  Van  lliiien  found 
ir  iieeessary  to  issue  another  Procdamation,  in  which  he  sai<l  that,  in  dis- 
i('«;iinl  of  the  solemn  warning,'  heretofore  {fiven  to  them  by  tiie  I'nxda- 
iiiiitioiiH  issued  by  tlie  Kxe(!Utive  of  the  (General  Government,  and  by 
<(»me  of  the  (Tovernors  of  the  States,  <Mti/ens  of  the  United  States  had 
conibiiied  to  disturb  the  peace  of  a  neij^hboriiiH:  and  friendly  nation ; 
aid  a  "  hostile  invasion"  had  "  been  made  by  the  citizens  of  tlie  United 
States  in  (;«uijunction  with  (/anadians  and  others,"  who  "are  now  in 
ariiis  against  the  authorities  of  Canada,  in  perfect  disrej;iird  t»f  tiieir 
own  obliijfations  as  American  citi/AMis,  and  of  the  obligatitins  of  the(iov- 
eiiinieiit  of  their  countrj'  to  foreijiii  nations." 

Ill  August,  liS4!K  President  TayU)r  issued  a  Protdaination,  stating  that 
there  was  "  reason  to  believe  that  an  armed  expedition"  was  "alxmt  to 
lie  fitted  out  in  the  United  States  with  an  intention  to  invade  Cuba  ;" 
and  letters  were  written  on  the  subject  to  tlie  District  Attorneys  in  Lou 
isiiiiia  and  at  Philadelphia,  Haltimore,  and  Hoston.  (Appendix  to  Amei- 
it'iiii  Counter  Case,  pages  (i4(l-(}l<S.) 

On  the  7th  of  .May,  18i»(),  Lope/,  nevertheless,  left  Orleans  with  live 
liiiinlied  men  ;  landed  at  ('ardeiias,  ami,  after  occupying  the  town,  tied 
nil  the  api»roach  of  the  Spanish  troops,  and  returned  to  the  I'nited 
States. 

It  appears,  from  the  Appemlix  to  the  American  Counter  Case,  that. 
orders  were  given  f(U'  his  arrest  on  the  lioth  of  May,  LS5(),  but  the  resiilr 
is  not  mentioned.     (Pages  (10(1,  (U»7.) 

On  the  27th  May,  LS.'iO,  he  was  arrested,  but  discliarged;  and  although 
tlii'Craiid  Jury  brought  in  a  true  bill  against  him  on  the  liLst  'Lily,  the 
luosecution  was  abandoned. 

On  the  lid  August,  I8.")0,  he  started  on  a  second  expedition  with  four 
liiindred    men,  and   was    exe(*uted  in  Cuba  on    the  llth  September. 
British  Counter  Case,  pages  ,>(),  M.     See  also  Appendix  to  American 
•  'oiuiter  Case,  pages  G7(i-(58(i.) 

In  October,  18r)3,  an  cx[)edition  agi-inst  Mexi(!o  issued  under  Walker 
lioin  San  Francisco,  and  seized  the  town  of  La  Paz.  In  INhiy,  bS.")."),  a 
second  expedition  issued  from  the  same  city,  under  the  same  adventurer, 
iijrainst  Central  America.  This  ex[)edition  landed  at  Healejo,  and 
Walker  continued  in  Central  America  until  May,  1807,  when  he  was 
conveyed  from  Kivas  in  the  United  States  ship  of  war  Saint  Mary's.  lie 
then  made  prepsirations  in  the  Uiiit«'d  States  for  a  tiiird  expedition  :  and 
these  renewed  preparations  occasioned  the  circular  of  Septeiiilier  18, 
1857,  urging  the  District  Attorin-ys  ami  Marshals  to  use  "  due  diligence" 
to  enforce  the  Act  of  1818.     (British  Counter  Case,  page  .'{8.) 

In  spite  of  this,  AValker  again  eluded  the  law  on  the  llth  September, 
1857,  and  sailed  from  Mobile  with  three  hundred  and  fifty  men.  After 
occnjiyiug  Fort  Castillo  in  Central  America,  he  was  intercepted  by  Com- 
modore Paulding  and  brought  to  the  United  States.  The  American 
Argument  mentions  this  oflicer  as  one  of  those  who  have  been  employ<'d 
"to  maintain  the  donustic  ord<»r  and  foreign  pea<!e  of  the  Government," 
(page  70;)  presumably  on  this  occavsion;  but  it  will  be  seen,  from  the 
Apiiendix  to  the  American  Counter  Case,  that  his  conduct  was  severely 
censured  by  the  President  at  the  time,  (page  612.) 

In  December,  1858,  another  expedition  started  from  Mobile  in  the 
Susan,  but  was  frustrated  by  the  vessel  being  wrecked, 
lu  November,  1859,  a  further  expedition  was  attempted  iu  the  Fashion. 


•'»■ 


422 


SUPPLEMENTAPY    ARGUMENTS    AND    STATEMENTS. 


k 


%' 


In  JuTie,  18<>(>,  Walkor  made  Ins  Inst  oxjiedition  froiri  the  Unitfi; 
Htatcs,  ajul  was  shot  at  Truxillo.  (British  Coniiter  Case,  ])a.'j;es  ;i7-tii. 
See  also  Appeinlix  to  Amerieai!  flounter  Case,  pages  515-518,  <ili!-»»_'7 
(i;iL'-(J4;;,  7()7-7(M>.; 

It  may  be  iiiterestiiif*' to  mention  that  a  correspondence,  respoctin;; 
claims  between  the  liepnblic  of  Ni(!arajiua  and  the  United  States,  luo 
i<M*entl.v  been  i)nblished  in  the  ollicialGazefte  of  that  Ilepublie,  in  wliidi 
the  (iovernmeiit  of  Nicarajjna  desinid  that,  in  a  proi>ose<l  ad.instiueiit  d! 
claims  by  a  Mixed  ('ommission,  the  claims  of  Xi<!ara.i>'iia  for  injuries  ami 
losses  snstaiiUMl  by  these  "  tilibnsterinjn''' expeditions  should  be  tiiki^n 
into  consideration.  The  (lovernment,  however,  of  the  United  States 
declined  all  responsibility,  on  the  {jronnd  that  they  had  fulfilled  all  tli;it 
(jould  be  requiietl  of  them,  either  by  the  laws  of  the  Uniti'd  States  oi 
by  international  law,  and  declai'Ml  these  claims  to  be  inadmissible. 

The  llritish  Counter  Case  gives  an  a'count  of  the  open  preparatioii- 
for  an  atta(*k  on  Canada  continned  dni'iiig  the  years  lS(>5-'<}().  The  fiisi 
raid  took  place  from  Buffalo  aiul  Saint  Alban's  in  June,  18(»(!. 

The  second  raid  was  from  31aloue  and  Saint  Alban's,  in  May,  1S70. 

The  thir<l  raid  was  on  the  Pembina  frontier,  in  October,  1S71. 

l'iX])editions  ])roceeded  from  tlie  United  States,  in  aid  of  the  Ciiltiiii 
insnigents,  in  tiie  Ciapeshot  and  IVritt,  in  May,  18(50;  and  from  New 
Orleans  in  the  Cesjjedes,  or  Lilian,  in  October,  180!>.  (The  latter  \v;i- 
stopped  at  Nassau.) 

Another  expe<lition,  in  the  ilornet  or  (hiba,  (the  vessel  having  Itoti: 
previously  libeled  in  the  Admiralty  Conrt  and  bomled  in  1870,)  hnidcii 
in  Cuba  in  January,  1871.     (liritish  (\)UTitei- <'asi,  page  45.) 

The  fbrcgoiiig-  narrative  is  i,ecessarily  brief  and  imperfect ;  but  it 
shows,  besides  the  systematic  itrivateeiing  i)racticed,  by  subjects  of'tlic 
I'nite<l  States,  ag^aiust  Spaii*  and  Portugal  in  181(;-i!8,  (when  upward 
of  fifty-four  privateei's  aie  mentioned  as  having"  been  armed  ant!  tli> 
patched  from  American  ports,)  tw«)expe«liti()ns  against  Cuba  under  L()|hv.; 
s.x  exiK'diti(ms  under  Walker;  three  Fenian  raids;  and  three  exiMMJi 
tions  Ml  ai<l  of  the  Cuban  insurgents.  The  latter,  a<'cording  to  tin 
reports  in  the  Amerii-an  press,  would  appear  to  be  still  continued. 

IX. — (k'ncral  Convhinittn  :  the  fuilnreto  prerent  does  not  almiys pron  r 

ivani  i>f  ^'- due  ilUujenveP 

The  general  result,  to  win-,  i  we  have  been  led  as  well  by  reas-jii  ami 
principle  as  bv  experience,  is  this:  that  occasional  (if  in.t) 
-III  pr..v,s  Ti,..,!  even  be  fro(,;u'nt)  ladui'es  to  prevent  acts  contrary  to  i;nv, 
r'".?t  nmniw"-  and  injui'ioiis  to  a  fiiendly  Srate,  may  nevertheless  bi' 
It/h™!',"'."' Tr'.'",  entirely  consistent  with  a  si'tious  intention  and  hona-M' 
<V"vV.'n,,,H!n''M  ,'m'n'..i  cudcavor.  ou  the  i»art  of  the  (lovernment  whose  siibjt'ti'- 
commit  such  acts  within  its  puisdiction,  to  previ'iit  tlifH!. 
iintl  with  the  use  of  due  diligence  for  that  pur|)ose  ;  that,  without  tiiml) 
information  and  ideiu-e  of  a  legal  kind,  sutlicient  and  proper  to  oo.i 
stitiite  a  "  r«asoniil)l«»  gi»»und  of  belief,"  no  oblig'ati(Ui  to  use  any  siicli 
<liIigeMce  arises,  and  that  the  (io\ernm»'nt  of  a  civilized  nation  ("iiin'l 
be  held  wanting  in  dm>  diligence  ii',  having  made  reasonable  provisinii 
by  law  for  the  prevention  of  illegal  a(!ts  of  this  nature  on  the  part  of  if" 
citizens,  it  i)rocee<ls  t;,  deal  with  all  such  eases  in  a  legal  <!ourse,  nccorl 
iiig  to  its  a(!customed  meth<»ds  of  <.ivil  a«lministratioii.  This  is,  in  lint 
the  "4liligence."  and  the  only  diligence'  which  is,  in  siu'h  cases,  gciicrall} 
"duo"  from  an  independent  State  to  Ji  tbreign  (lovernment ;  ami  tb'"' 
this  it  follows  that  acci«tental  and  unintentional  difficulties  orde)'!)- 


BRIT  18 H    Sl'PPLEMENTAL    ARGUMENT. 


42a 


in  t!«c  Uiiitfii 

?,  |)a:j:<-s  ;{7-4(i. 

>-518,  (>1L'-»»J-. 

ICO,  rospoctiii;; 
l«m1  States,  lijiv 
ublic,  ill  wliidi 
adjustment  (it 
or  iii.jiiricsaiiil 
Dtild  be  tiikoii 
United  States 
nlfillcil  all  tliat 
lited  States  oi 
dniissible. 
)i  pivpaiatidiis 
-'<;<>.  Tlie  fust 
LSCd. 

M  May,  ISTd. 
r,  1S71. 
I  of  tlie  Ciiltiiii 
and  from  New 
Tlie  latter  \v;i> 


ly  roas'jn  iiini 
isional  [h  m\\ 
iiitrary  to  ijiw. 
■ivertlieless  !"■ 

and  hoiKiJi'l' 
whose  siibji'ci- 
prevent  tln'iii. 
without  tiiiii'l) 
propel'  to  eon- 
)  use  any  siidi 

nation  ("iiim'I 
ai)h^  provisiiiii 

lilie.  part  of  it* 
'oiirse,  iiccoi'il 
iiis  is,  ill  t'att. 
ises,  <;ciieiitll} 

nt;  and  f""" 

ies  or  delnyv 


,ir  ev^-n  slips  and  errors,  su(5h  as  are  liable  to  result,  in  the  conduet  of 
|)ul)li(-  alfairs,  I'roni  the  nature  of  the  subordinate  instruments  by  which, 
and  the  circumstances  under  \vhi(di,  civil  Governnientis  necessarily  car- 
ried on,  and  ajiainst  which  no  human  foresifjht  can  always  absolutely 
lirovide.  oii;;iiL  not  in  themselves  to  be  regarded  as  instances  or  proofs 
of  a  want  of  "  due  diligence,"  where  good  faith  and  reasonable  activity 
oil  tlie  jiart  of  the  Government  itself  has  not  been  w.uiting.  Least  of 
,,lUaii  the  Government  of  a  free  country  be  lield  wanting  in  due  diligence, 
nil  file  ground  of  errors  of  judgment,  into  which  a  dudge  of  a  Court  of 
l.iiw,  ill  the  exercise  of  a  legal  jiiristliction  properly  invoked,  may  have 
talleii  (as  when  the  Florida  was  acquitted  at  Nassau)  in  the  decision  of 
;i  particular  case. 

'Tlu'  I'liittMl  States  aj^HM'  with  Ih^v  Majesty's  (JoveniiiHMit  when  it  says,  as  it  <loes 
ill  its  Cduiiter  Case,  that  it  sliould  not  1m>,  and  tliey  hope  it  is  not,  in  the  ]»()\ver  of  Iler 
Miijesty's  GoveiiinuMit  to  instinct  a  jnilj^e,  whether  in  the  United  Kiii<j;ih)ni  or  in  a 
colony  or  depen<h,'n(;e  of  the  Crown,  liow  *o  deeide  a  ])articnhir  case  orcinestion.  Ni> 
indue  in  Her  Majesty's  (h)niiiiions  should  isnhinit  to  he  so  iustrneted  ;  no  connnnnity. 
Iiciwever  sniiill,  should  t-'i-rate  it :  and  no  minister,  however  iiowerful,  sliould  over 
iliiiik  (ilatt(!in|ilinK'  it."     (Arjjunieiit  of  the  Ihiited  States,  ;i.  ]2l.) 

This  being  so,  if  the  Government  had  information  and  evidence  which 
made  it  their  duty  to  iletain  such  a  ship  as  the  Florida,  and  to  endeavor 
to  prosecute  her  to  condemnation,  and  if  they  actually  did  so,  aii<( 
ft'eied  for  that  purjiose  proper  evidence,  they  used  all  the  diligence 
which  was  due  from  them.  Over  the  Judgment,  whether  right  or  erro- 
neous, they  had  no  (control ;  and  for  it,  if  erroneous,  they  have  no  respon 
sihiiity.' 

Jiiit  the  counsel  of  the  United  States  say  that — 

•The  efforts  of  the  British  Case  and  Counter  Case  to  ascribe  to,  or  ai)portion  anionj;;. 
lilt'  various  (h-partnu'iits  of  national  authority,  lej^islative,  Judicial,  and  executive. 
!iiiiioi]ial  or  siilxndinate,  the  t'.'.e  nieasurt;  of  obligution  and  res)ionsil>ility,  and  of  fault 
111' liiilmi,',  ill  the  prenii.ses,  «N  (uiiok// //ir/ii^y/rfx,  seem  wholly  valueless.  If  the  sum  of 
•ill' alili;;atioiis  of  Great  Jhitaiii  to  the  I'nited  Stat«'s  was  not  p»rfornied,th»' nation  was 
ii:  laiilt,  wherever,  in  the  fniietioiis  of  the  State  or  their  exercise,  the  failure  in  duty 
arose."    (Ari^tinieiit,  p.  147.) 

Tlie  (piestion,  whether  "  the  sum  of  the  obligations  of  Great  Britain 
to  the  United  States"  was  or  was  not  performed,  (which  is  the  jioint  at 
issue,)  seems  to  be  here  assumed.  A  petitio prhuipii  cannot,  of  course. 
Ik' an  answer  to  arguments  intemli'd.  to  show  that  the  sum  of  those  na- 
tional oliligations  was,  in  fact,  performed.  The  United  Stat(>s  allirm  that 
ill  the  varit)us  ca.ses  in  which  they  themselves  failed  to  prevent,  within 
tlieir  own  territory,  equipments  and  expeditions  hostile  to  other  States, 
tlie  sum  of  their  own  uational  obligations  was  performed  ;  and  yet  Ihey 
seem  to  deny  to  the  Government  of  (iieat  Britain  the  beneht  of  the  same 
equitable  principles  of  Judgment. 

X. — Of  the  burden  of  proof  accoriling  to  the  Treaty. 

They  go  further:  iiey  seek  to  invert  the  whole  burden  of  proof  in  the 
present  controversy  :  ^  ...     .  ,., 

'  ••  .W.    Atl lit  ol  lli>' 

I'rilt.vl    ,St:itHii    til 

nvjoiiiiilalion  of  ihr  ohlhjnt'wu  of  (Jreat  Britain  to  use  "diit^  diligence  t^;;T' ^"U^i^  ",';. 
lo/orrcrt/  '  lertiiin  acts  an»l  oeeiirrenees  williin  its  Jurisdiction,  it n  nun-  ni- im'-Hnt  .m.t... 
fioiwd  in  the  three  Rulex,  is,  that  those  nrln  and  occurrencen  within  iln  jnriHiUc-  "'"' 

,  ""'  Jmlyrment  of  ac<|iiitlal,  when  (Mice  )irononnced  by  the  Court  of  Aclniiralty  in  favor 
i>f  tlie  vessel,  was  conclusive,  as  a  Ju(lH;nient  in  rem,  prevontinji;  tlie  possibility  of  iier 
lit'iii;,'  afterward  a;;aiii  seized  as  Ibrfeited  for  ii  breach  of  the  Jtritish  Foreijjii-Enlistmout 
.\<t,  exee|)t  on  the  {ground  of  some  new  violation  ol  the  law,  snb.seqiient  to  that  Jnd^- 
iiieiit.  This  point  of  law  was  expressly  detiu'iiiiued  by  tlm  Stipreine  Court  of  the  United 
States  ill  the  case  of  ({elsloii  vs.  Iloyt,  already  nientioned.  The  etlect  of  JiulgiiiontH  iii 
'■'w  liy  courts  of  admiralty  is  everywhere  recognized  by  iuteruational  law. 


%A 


424 


SUPPLEMENTARY    ARGUMENTS   AM)    STATEMENTS. 


tlon  aiT  offvnm's  againxt  intcniatiunal  hnr,  and,  liciiij;;  iiijiiiions  to  the.  b'liited  States,  im 
iiiHhiHl.juHt  occaNiou  for  reseiitiiicnt  ou  tlu-ir  jiurt,  iimi  lor  reparation  and  indcinnitv  li\ 
(ireat  Itritain,  nnUns  these  orteiisive  acts  and  oct;iirreii<e.s  sliall  be  alfirniativi'ly  slmwn 
to  have  proceeded  from  ooiidnet  and  eans«'.s  forwliicli  the  (Joverniuent  of  (Jrcat  IJiitain 
i.s  not  responsible.  Jiut  b)i  the  law  of  iialioiis  tlu'  Stale  ix  irxpotiMiblit/or  all  oJf'e»m:s  commitUii 
atjainst  intiruutUmal  law  arixiiuj  within  its  Jiiriinliclioii,  by  wliieh  a  fon'ijju  State  sntttix 
injury,  iinh.xs  the  formtr  can  vicar  itxclf  of  rcxiwnxihilily  by  dcinoiixtraliiiij  itx  freedom  frmn 
fault  iu  the  prrmiscx.     (J'ajje  IM.) 

Ami  ugain,  at  page  154  : 

The  nature  of  the  prcxnmiilire  relation  n'hich  the  State  bearx  to  the  offemen  and  injnriis  ;,,, 
pnted  and  prored  necexmrilji  throwx  upon  it  the  hnrden  of  the  exculpatory  proof  demamliil: 
that  iH  to  say,  thi-  proof  of  due  dili<;ence  (»n  its  part  to  prevent  tiie  offenses  wliich.  hi 
filet  and  in  si)ite  of  its  efforts,  have  been  eoniniitted  within  its  Jurisdietion,  and  Ihim 
\vron<fht  th(!  injnri(!s  coniphiined  oi". 

Ill  tlio  face  of  th»^  sixtli  aiticle  of  tho  Treaty,  by  wliich  Her  Mitjest) 
expres.sly  (lecliiie.s  to  assent  to  the  three  lliiles  as  a  .state 

:iy.   Ill  lo  iloj  Mil.  X.      ••'        •        •     1  J-    •     J  .-  11  1   •    1  •       .• 

.i,.y  iri.,1 «,,..  tiK-  iiieiit  ot  principles  ol  international  law  wliitih  were  in  loici 
when  these  claims  aro.se,  but  agrees  that  the  .\.rl)itiatoi> 
ii;ay  apply  these  rules  to  the  decision  of  the  (ilaiins,  npon  the  fooiUuj »»/ 
itii  Hvdertakiiiff  hij  (iriat  Britain  to  act  upon  their  principles — it  is  lien 
assnnuni  that  all  su«;h  acts  or  occurrences  within  IJritish  Jurisdiction  ii> 
are  mentioned  in  the  Treaty  are  to  be  dealt  with  by  the  Arl)iU'ators  a^ 
nfenses  tiijainst  iufervational  lair;  notwithstanding  the  proofs,  given  in 
the  IJritish  Counter  Case  ami  the  annex  (A)  thereto,  and  referred  to  iii 
the  coinnienceineiit  of  this  paper,  that  international  law  never  did  lequiK 
a  neutral  (ioveniinent  to  prohibit  and  prevent  the  manufacture,  salt. 
and  dispatch  of  unarnie<l  ships  of  war,  by  its  citizens  within  its  teiii 
lory,  for  a  belligerent. 

In  the  face  of  the  three  Kules  themselves,  which  afiirm  th«>  obligatitMi 
of  due  diligence  to  jnevent,  only  when  there  are  "reasonable  ground^ 
to  believe"  that  some  prohibited  act  has  been  or  is  about  toliedoiu, 
the  United  tStates  decline  the  burden  of  establishing,  in  each  or  iui\ 
case,  the  existence  of  this  preliminary  and  indispensable  condition,  rm- 
Honahle  (irounil  for  hiUef;  and  they  ask  that  tliis  should  be  taken  I'oi 
granted  in  every  <^ase  until  it  is  disproved. 

To  justify  this  disregard  of  the  ])rimary  condition  of  the  rules,  tlu\ 
appeal  to  a  sui)posed  law  of  nations,  which  is  sai<l  univer.sailv 

4(1.   Thf  linv  ol  nil-      .  "^   ' .  ,  ,  '    '  ...  ,  .   '  .  ,  ,.  ,  ..        ' 

:.mH,i„.„„„i  iu,tiiv  to  tiiiow  the  onus  ol  demonstrating  its  own  ireedom  iroiii 
"  fault  in  the  jneini.ses'' upon  every  State  whose  citi/.eii> 
commit  any  ott'ense  against  international  law,  injuriou;  to  a  forci;rii 
State  within  itsjiirisdi(!ti<ui;  which  principle,  as  was  shown  in  the  earl.\ 
part  of  this  paper,  has  never  been  exteiuled  to  cases  (like  the  present 
when  the  acts  iu  «|uestion  have  been  done  by  indivi<luals  or  by  small 
numbers  of  citizens.  The  United  States  do  not  admit  themselves  to  I" 
responsible  for  all  the  eipiipments  and  iiostile  expeditions  of  their  citi 
/.ens  against  foreign  States  which  they  have  failed  to  prevent,  uikIci 
the  lU'opositious  that  "it  is  presumed  tiiat  a  Sovereign  knows  wiiat  lii> 
subjects  openly  and  fre^piently  commit ; "  that,  "as  to  his  power  of  liiii 
dering  Ihe  evil,  this  likewi.se  is  also  presume<l  unless  the  want  of  it  1)1 
clearly  proved."'  But,  if  those  propositituis  would  not  be  a|)plicaltli 
against  the  United  States,  why  are  they  to  be  applied  against  (ireai 
Ibitaiii,  to  cases  much  further  removed  in  their  nature  and  i-ircumstaiicc- 
from  the  terms  of  the  propositions!? 

It  happens  that  there  is  a  decision  of  weight,  of  which  the  riiitcd 

n.  ih.  .i..i.,.„,.i  States  long  ago  had  the  benefit  in  a  former  controvers.v 

l'.'ihrvt'il.'e,,,mmi:  with  (Ireat  IJritain,  under  <-ircumstances  not  very  dissimilar 

"rr'"«.'v  "l-'Tw"',',  i"   principle,  which  is  directly  opposed   to  this  attem|»t  on 

liiiiiMt.  their  part  now  to  alter  the  burden  of  proof.    The  I'liitt'd 


rs. 

;c(l  States,  im 
1  imltnniiity  liv 
lativcly  sliowi! 
flJrffit  ISritaiii 
fcnutx  commUhii 
u  Stiiti'  siilii-iv 
Ik  J'rvii(hiiit  fi-iihi 


and  hijiirhy  'u,i- 
troof  (IciiKiiKhd : 
tMiscs  wliifli.  hi 
■tion,  and  l>ii\i 

Hoi'  ^^:l.iest> 
es  as  a  state 
woiv  ill  Ibrcc 
^  Arbitrator^ 
the  fooliiKj  i>j 
'S — it  is  hcMc 
irisdiction  as 
Li-hiliators  a> 
)ot's,  ,i>iviMi  ill 
I'eh'mMl  to  at 
i»r  did  iv(]uiii 
ifactnro,  sale 
hill  its  tiMii 

lu>  oblijiatimi 
nbh'  <>nmii(l> 
t  to  iu'  doiif. 

earli  or  aii\ 
onditioii,  rcn- 

H'  taken  tm 

rules,  the\ 

I  universally 

v«'doin  fVoiii 

losci  citi/A'ir- 

to  a,  l'orei;iii 

in  the  eail.\ 
the  preseat 
s  or  by  saiall 
iselves  to  !»' 
of  their  eiti 
event,  umiti 
)\vs  what  lii> 
M>\ver  ot'liiii 
kvant  ol'  it  lie 
le  appliealil" 
•  ainst  (ileal 
r('uiiistaiu't'> 

1  the  riiitcfl 
ctnitroveisy 
ry  dissiiiiiliit 
^"attempt  on 
The  l'iiit«'<l 


BRITI81I    .SL'PPLEMKNTAL    ARGUMENT. 


425 


States  come  before  tlie  Arbitrators  under  an  agfreeinent  of  the  Queen 
of  (treat  Britain,  by  which  Iler  Majesty  authorizes  the  Arbitrators  to 
assume  that  slie  had  undertaken,  wlieii  the  present  (!lainis  arose,  to  act 
upon  tlie  i)riiicipU*s  set  forth  iu  the  three  KuU's,  though  not  admitting;' 
tliein  to  have  been  then  in  force  as  rules  of  international  law.  In  171KS, 
(Ireat  Britain  came  before  the  Commissioners  of  (Jlaims  under  the  Treaty 
of  1701,  with  sin  a(;tual  undertuking  by  the  United  States  to  use  all  the 
moans  in  their  [)ower  to  restore  all  British  prizes  brought  into  ports  of 
tlie  United  States,  after  a  certain  date,  by  any  v<'ssel  illegally  armed 
within  their  jurisdiction,  and  with  an  at^knowledgment  of  their  conse- 
i|iu'nt  obligation  to  make  compensation  tor  such,  if  any,  of  those  luizes 
as  they  might  not  have  used  all  tlui  means  in  their  i)ower  to  restore. 
Tlu'  undertaking  of  (Jreat  Britain,  now  to  be  assumed  by  the  Arbitra- 
tors, is  conditional  iijion  the  existence  of  ^^  rensonable  (/rounds  for  belief'- 
ot  certain  facts  by  the  British  (Joveniment  in  the  case  of  each  of  the 
vessels  for  which  (Ireat  Britain  is  sought  to  be  made  responsible.  The 
undertaking  of  the  Unite«l  States,  in  1794,  was  also  dependent  upon 
certain  (ioiulitions  of  fa(!t.  What  was  the  decision  of  the  Uommissioners 
ill  the  case  of  the  Elizabeth  ?  (British  Counter  Case,  pp.  20,  ;>(),  and 
British  Appendix,  vol.  v,  ji.  ;»li-  :) 

"  Fidin  this  cximiiiiation  of  tin-  letter,  wliicli  is  {jiveii  to  ns  for  a  rule,  (Mr.  Jeft'ersoii 
to  Mr.  Ilainnioiid,  otii  .Se]>tember,  17!i;?,)it  results  tliat  it  was  tlie  o])iiiioii  oftlm  I'resi- 
iltiit,  therein  expressed,  that  it  was  iiieiiiiilieiit  on  the;  United  States  to  make  restitu- 
tion of,  or  compensation  for,  all  sneh  vessels  and  projterty  helonf;iiij;  to  Hritish  snhjeets 
, IS  should  have  heen,  tirst,  captured  lietween  tlu^  <lates  of  .June  .">  and  Aiij^ust  7  within 
tho  line  of  Jurisdictional  protection  of  the  United  States,  or  even  r)n  tlie  hi;>h  seas  :  if, 
secondly,  sueli  e.'ipfui'ed  vessel  and  ])rojiert,v  wen;  1)rouj5ht  into  the  ports  of  the  United 
Slates  ;  and.  thirdly,  provided  that,  in  cases  of  caiilure  on  the  hij;h  s(;as,  this  responsi- 
liility  sIkuiUI  lie  limited  to  captures  inaile  by  vessels  armed  within  their  jjorts;  and, 
t'oiiillily,  that  the  ol)li<;ation  of  compensation  should  exttmd  only  to  captures  made  lie- 
lore  the  7th  Au;4Ust,  in  which  the  Ignited  States  had  eonfi'ssedly  foreliorne  to  use  all  the 
imiiiis  in  their  power  to  jiroeure  restitution  ;  and  that,  with  respect  to  cases  of  captures 
iiiiidi'  under  the  first,  second,  and  third  circumstances  aliove  enumerated,  Itut  hronftht 
ill  after  the  7th  Auj^ust,  tlio  President  had  determined  that  all  the  means  in  the  power 
ol  ;lic  United  States  should  lie  used  for  their  restitution,  and  that  compensation  would 
I'i  ri|iialiy  inciimljent  on  the  United  States  in  such  of  these  eases  (if  iiiiy  such  slmuld 
ill  any  future  time  (iccnr)  wh<^re,  the  United  States  havinj^  decreed  restitution,  ami  the 
ia]it(irs  liavinL;  opposed  or  relnsed  to  comply  with  or  sulimit  to  such  decree,  the 
I'liitt'd  St;ites  should  forbear  to  carry  the.  same  into  i-lfect  by  force. 

"Such  was  (he  iironiise.  In  what  manner  was  that  iiromise  to  be  carried  into 
I'fll'it .'  It  wii-j  tiot  absolute  to  restore  liy  the  hand  of  power,  in  all  cases  wlieit!  cotri- 
plaiiit  should  be  made.  »»*»»» 

"Xo,  the  jiromise  was  conditional.  We  will  restore  in  all  those  cases  of  complaint 
"7i()>  (7  k/(«//  he  istahlislud  bji  >iiiffiriiiil  liKtimoiin  llial  llic  fuvts  air  iriif  which  form  the  huHin 
'ifimrinoiiiisf — that  is,  that  the  property  claimed  belonj^s  to  liritish  subjects;  that  it 
was  taken  either  within  the  line  of  jui  isdictioinil  protection,  or,  if  on  the  liij;;''  seas, 
tiiin  by  some  vessel  illegally  armed  in  (uir  poits;  jind  that  the  projierty  so  taken  lias 
ticcu  brouj^ht  within  our  jiorts.  IU/ whom  in  re  Ihiat  fnrtH  to  he  finiriilf  Arvordiiig  to 
iva'ji  iniiuiiilc  of  irimoii,  jiinlur,  or  iiiiiiti/,  it  beloinjn  to  him  ivho  (laiiiiH  the  biiiijit  of  a 
I'lvmiKi'  to  itroii;  that  he  in  thv  iuthoii  in  ivhow  fai'iir,  or  iiiidir  thf  (iiciiiiinluiu'cn  in  whiih  'hr 
imimisv  iiax  inlinilal  to  oiwniti." 

XI. — Special  tjuestions  remaining  to  he  eonsidered. 

These  are  the  arguments,  upon  the  subject  of  the  diligence  generiilly 
tliic  by  (Ireat  Britain  to  the  United  States,  with  reference  ^^  ^^  .^ 
to  the  subjects  to  which  the  three  Bules  of  the  Treaty  of  tMu,-rBm','nin«T.ri,V 
Wa.sliiiigtou  relate,  and  the  ininciples  accortling  to  which 
tiiiit  tliligence  is  to  be  proved  or  disproved,  which  it  has  been  desired 
'•y  Her  Britiinnic  Majesty's  Coun.sel  to  submit  to  the  Arbitrators.  There 
•  iiiain  some  other  spechil  (juestions,  which  r-^'uire  separate  e.xaiuina- 
tion : 


I'    ' 


% 

\ 

rf^ 

"1  - 

>^ 

1.  \ 

■i  -fi 

N "' 

li 

1 

Vi 


420 


sijpplemp:ntary  arguments  and  statements. 


i\1 


i 


■•1-N,r 


J.  Whether  the  diligence  due  from  (rreat  JJiitaiii,  as  to  any  vessel 
equipped  contrary  to  the  tirst  Kule,  exteinled  to  the  pursuit  of  tiic  vi  > 
sel  by  a  naval  foree  after  sl»e  liad  passed  beyond  British  jurisdietion  '. 

2.  Wliether  the  diliy,enee,  so  due,  extended  to  an  obli;^ation,  on  tlic 
re-entry  of  any  sueli  vessel  into  a  Jiritish  port,  after  she  had  been  eoiii 
missioned  by  the  Confederate  States  as  a  public  ship  of  war,  to  seizt 
an«l  detain  her  in  such  port  ?     And, 

.{.  Whether  supplies  of  coal,  furnished  in  British   ports  to  Confcd 
erat(^  cruisers,  can  be  regarded  as  infractions  of  the  se(;ond  Rule  of 
the  Treaty,  or  as  otherwise  wrongful  against  the  United  States  ? 

XII. — There  existed  no  d at y  to  pursue  ships  beyond  the  limits  of  lirifinii 

jurisdiction. 

Upon  the  flist  of  these  three  points,  the  sole  argument  of  the  United 

4,.  A-  u,  ti, States  api)ears  to  be  derived  from  the  precedent  of  the  Tei 

'iZ,'\  Ti''..  •iv,.''.'i'r;i  ceira  exi)edition  in  18U0.     It  is  a  strange  proposition,  and 
""'"'""  one  unsupported  by  any  principle  or  authority  in  interna 

tional  law,  that,  Itecause  a  (Jovernment,  which  conceived  its  ntnitrality 
laws  to  have  been  infringed  npon  u  particular  occasion,  may  have 
thought  tit  to  visit  that  offense  by  extraordinary  measures  (reiflly  in  tlie 
nature  of  war  or  rejjrisals)  beyond  its  own  territory,  therefore  it  idaced 
Itself  under  an  obligation  to  take  similar  mej  sures  upon  sul>stMiu('iit 
occasions,  if  any  such  should  occur  of  a  like  character.  In  point  of  fact. 
there  is  no  simihirity  between  the  Terceiracase,  which  (in  the  view  taken 
of  it  by  the  British  (Government)  was  an  exi)edition  of  embodied,  t  loiijsli 
unarmed  troops,  proceeding  in  trans[)orts  from  Great  Britain,  against 
an  express  prohibition  of  the  British  Government,  for  the  invasion  of  a 
friendly  territory,  and  the  departure  of  unarmed  vessels,  for  the  use  nl 
the  Confederates,  from  British  ports.  In  point  of  international  law. 
the  British  Government  was  not  only  uiuler  no  obligation  to  pursne 
the  Terceira  expe<lition,  but  Sir  Robert  Pliillimore  (who.se  authority  is 
so  much  extolled  in  the  Argument  of  the  United  States)  distinctly  con 
denins  that  i)roceeding.  "  The  Government,"  he  says,  "  were  sui)p()rted 
by  ji  majority  in  both  Houses  of  Parliament ;  but  in  the  protest  of  tlic 
House  of  Lords,  and  in  the  resolutions  of  (/.  e.,  moved  in)  the  IIou.se  ot 
Commons,  (which  condemned  the  proceedings  of  the  Government,)  the 
true  i)rinciples  of  international  law  are  found."  (Commentaries,  vol.  iii. 
p.  23-).) 

The  two  remaining  points  are  those  on  which  the  Arbitrators  have 
consented  to  receivt;  arguments,  embracing  other  iuiportant  (luestions. 
both  of  international  law,  and  as  to  the  proi)er  interpretation  of  tin 
rules  of  the  Treaty  of  Washington,  in  addition  to  the  (piestion  of  tlif 
diligence  (if  Jiny)  due  from  Great  Britain  to  the  United  States,  in  those 
respects. 


Chapter  II. — On  the  special  question  of  the  effeut  op  tiii; 

COMMISSIONS   OF   THE  CONFEDERATE   SHIPS   OF  AVAR,  ON   THKllt  KN 
TRANCE   INTO   BRITISH   PORTS. 


i: 


It  is  contended  by  the  United  States  that  these  ships  (orai  least  sii'li 
of  them  as  had  been  illegally  equippe«l  in  Britl.sh  territory 
•tn. -I'.'i'i  of'ih.'"i''i  ought  to  have  been  .seized  and  detained,  when  they  came 
n.io„Mherr,.,.t,.     .^^^^^  Brltlsh  pofts,  by  thc  British  authoritie.v.    This  argu 


BRITISH    81  P1'L^:MENTAL    ARGUiMENT. 


427 


iiK'iit  depends  upon  a  forced  coiistriiotioii  of  the  concluding:  words  of 
tlie  first  Kule,  in  Article  VI  of  the  Treaty  of  Wasliinj^ton  ;  which  calls 
iijion  the  neutral  State  to  "  use  due  dili}>ence  to  prevent  the  departure 
from  its  jurisdiction  of  any  vessel  intended  to  (anise  or  carry  on  war  as 
;il)Ove,  snch  vessel  having'  been  specially  adapted,  in  whole  or  in  part, 
within  such  jnrisdiction,  to  Wiirlike  use.''  Dots  this  Knle  authorize  the 
Arbitrators  to  treat  it  as  a  dnty  nndertaki'U  by  (Ireat  Ihitain,  to  seize 
Cout'ederate  cruisers  connnissioned  as  public  sliips  of  war  and  entering; 
British  ports  in  that  character,  without  notice  that  tlu^y  would  not  be 
u'oeived  on  the  sanu>  terms  as  other  i)ublic  ships  of  war  of  a  belligerent 
State,  if  they  were  believed  to  have  been  "  specially  adai)ted,  in  whole 
or  in  [Kirt,  within  British  jurisdiction,  to  warlike  use  T'  Th<^  negative 
answer  to  this  inquiry  results  ininiediately  Iroin  the  natural  meaning- 
ol  the  words  of  the  Kule  itself,  which  jdainly  refer  to  a  departure  from 
tlie  neutral  territory  of  a  vessel  which  has  not  at  the  time  of  sucii  de- 
parture ceased  to  be  suhject,  according"  to  the  law  of  nations,  to  the 
iindral  Jurisdiction ;  and  the  cruising  ami  carrying?  on  war  by  which 
still  rests  in  intention  and  purpose  oniy,  and  has  not  become  an  accom- 
plished fact,  under  the  public  authority  of  any  belligerent  Power. 

If  a  ])nblic  ship  of  war  of  a  belligerent  Power  should  enter  neutral 
waters  in  contravention  of  any  [»«)sitive  regulation  or  pro- 
liiltition  of  the  neutral  Sovereign,  of  which  due  notice  had  i"  .....im  'I',V's"ni 
heen  given,  she  might,  accoi'ding;  to  the  law  of  nations,  be  """"""""  "'"" 
treated  as  guilty  of  a  hostile  act,  a  violation  of  neutral  territoiy  ;  and 
hostile  acts  muy  of  course  be  Justifiably  repelled  by  force.  IJut  the 
original  equipnu'ut  and  dispatch  from  neutral  territory  of  the  same 
ship,  when  unarmed,  whether  lawful  or  unlawful,  was  no  hostile  act ; 
ami  a  foreign  Power,  which  afterward  receives  siwh  a  ship  into  the 
public  establishment  of  its  navy,  and  gives  her  a  new  character  by  a  pub- 
lic commissiim,  cannot  be  called  upon  to  litigate  with  the  neutral  Sovereign 
any  cpiestion  of  the  nuuiicipal  law  of  the  neutral  State,  to  whose  jnrisdic 
tion  it  is  in  no  matter  subject.  The  neutral  State  nniy,  if  it  think  fit, give 
notice  (though  no  authority  can  be  produced  for  the  i)roi)osition  that 
it  is  under  any  internatiiuial  obligation  to  do  so)  that  it  will  not  allow 
the  entrance  of  a  ])articular  description  of  vessels,  whether  commis- 
sion* d  or  not,  into  its  waters;  if  it  gives  no  such  notice  it  has 
no  right,  by  the  •\n\\  of  nations,  to  assume  or  exercise  any  Juris- 
dietion  whatever  over  any  ship  of  war  coming  into  its  waters  under  the 
Hag  ami  public  commission  of  a  recognized  belligerent.'  Snch  a  ship,  com- 
nntting  no  breach  of  neutrality  while  within  neutral  waters,  is  entitled  to 
extra-territorial  pjivileges ;  no  court  of  Justice  of  the  neutral  country 
can  assume Jnrisihction  over  her;  the  Aug  and  commission  of  the  bel- 
ligerent power  are  conclusive  evi(lence  of  his  title  and  right;  no  inquiry 
can  be  made,  under  .such  circumstances,  into  anything  connected  with 
her  antecedent  ownership,  character,  or  history.  Such  was  the  de- 
cision (in  accordance  with  well-established  principles  of  international 
law)  of  the  highest  Judicial  authority  in  the  United  States  in  1811,  in 
the  ease  of  the  Exchange,  a  ship  claimed  by  Ann^rican  citizens,  in  Amer- 
ican waters,  as  their  own  property  ;  but  which,  as  she  had  come  in  as  a 
public  ship  of  war  of  France,  under  the  commission  of  the  first  Em- 
peror Napoleon,  was  held  to  be  entitled  to  recognition  as  such  in  the 
waters  of  the  United  States,  to  the  entire  exclusion  of  every  proceeding 


'  Th<i  proi-ettliiigs  of  tlin  Hritisli  (tovornineiit,  in  tho  case  of  the  TiiscalooHU,  tumod 
I'litiicly  iijioii  tlu;  (jiustion  wlictlier  ^*llo  waw,  or  waH  not,  ii  j;»ir(,  wlios«s  entrniico  into  a 
Hiitiuli  port  whs  prohibitod  bv  tin-  rules  publiclv  issued  by  tlio  Queen  at  tbe  begiuniuK 
of  til'  war. 


P 


f 


f^^q, 

r  ' "" 

y 

1 

1  '%IM 

s,  A  fl 

^ 

!■''>-    9n  '^B 

428 


8UPPLEMENTAKY    ARGUMENTS    AND    STATEMENTS. 


■Hi 


i:! 


I        ' 


:i 


in     •>  . 


i 


i 


1!^ 


I 


and  inqnirv  wliatpver,  whieli  inifjht  tend  in  any  way  to  deprive  lu  r  nl 
the  benefit  ol  that  privile^^ed  charaeter.  Tlie  principles  laid  doVu  in 
the  followinft'  extniets  from  thatjndjjment  are  in  accordance  with  those 
which  will  be  tbnnd  in  every  authoritative  work  on  internation.al  law 
whi<!h  treats  of  the  snbjectt;  (see  tlie  pjissajfes  from  Ortolan,  Ilautt' 
fenille,  Pandc;,  &c.,  cited  at  length  in  the  note  to  the  British  (Jonnrci 
Case,  ]>p.  14,  lo;  also  A/uni,  vol.  ii,  (Paris  edition,  180r>,)  ])p.  ,'{14,  "U.'i. 
&('. ;  and  Illnntschli's  "Droit  international,"  Article  o21,  p.  184  of  the 
French  translation  by  Lardi:) 

Till'  world  liciiiif  coiuposctl  ot'  distiiict  sovcrfinntii's,  )n)s.s«'.s.siii;j  i.-({Uiil 
lights  and  tM|ii!il    indcpcndi'iut',    wliost'  nmtiiiil   l»iiu'(it  is  promoted   by    KviiH'i'm.r ' 
iutcn'oiirsr   with  cacli  other,  and  liy  an  iiitcrchaiiffcof  thos<<  fjood  ((fliers 
xvhieh  Imiiianity  dictates  and    its  wants  riMiiiiic,  all   Sovereifjiis  have  consented  t.i  u 
relaxation  in  |ii'a*-tice,  in  eases  under  i'crtain  peculiar  circiiinstances,  ot'  that;  abHitliur 
and  eoiiiplete  Jniisdiction  within  their  respective  territories  which  sovereignty  coidii^. 

'I'his  consent  may,  in  some  instances.  In;  ti'sted  by  common  I'.sagi'  ..ml  l)y  coiniiioii 
opinion  giowiiig  out  of  that  usage. 

A  nation  wonld.jnstly  he  considered  as  rioluthi;/  ilx  faith,  although  that  faith  iiii;;li! 
not  be  ex]iressly  plighted,  which  should  suildenly,  and  without  previous  notice,  cmi- 
cise  its  territorial  powers  in  a  manner  not  consonant  to  the  usages  and  received  olili- 
gations  of  tiie  civiliziMl  w<n'ld. 

This  full  and  absolutt!  territorial  Jurisdiction  being  alike  tlu'  attribute  of  every  Sov- 
•  reigii,  and  being  incapable  of  conferriiifj  extra-territorial  jtower.  would  not  seem  to 
coiitemjilate  foreign  Sovereigns  nor  their  sovereign  rights  as  its  (dtjects.  One  Sover- 
eign being  in  no  respect  amenable  to  another,  anil  being  bound  by  obligations  of  tin 
highest  character  not  to  degrade  the  dignity  of  his  nation,  by  [daciug  himself  or  ii^ 
sovereign  rights  within  the  jurisdiction  of  another,  can  be  8ii)>posed  to  enter  a  forei,'ii 
territory  only  under  an  exjuess  license,  or  in  the  eonlidence  that  the  immunities  Ih- 
longing  to  his  indei»eiideut  sovereign  station,  though  not  cxjin-ssly  stipidatcd,  iiic 
resi'ived  by  imiilieation,  and  will  be  extended  to  him. 

This  i»erfect  e(|iiality  and  absolute  independence  «if  Sovereigns,  and  this  cuiiimou  in- 
terest imjielling  them  to  mutual  intercourse  and  an  interchange  of  goodotliccs  wilh<  m.  h 
other,  iiave  given  risi^  to  a  class  of  cases  in  which  every  Sovereign  is  understooil  to 
waivi'  the  exercise  of  a  jiart  of  that  coiiiph'te  exclusive  territorial  jurisdiction  wliiili 
has  been  stateil  to  be  the  attribute  of  every  nation. 

U\  for  reasons  of  state,  the  ]iort8  of  a  nation  generally,  or  any  jtarticular  jtortv.  '» 
closed  against  vessels  of  war  generally,  or  the  vessels  of  any  particular  nation,  iiotin 
is  usually  given  of  such  determination.  If  there  be  no  prohibition,  the  pints  oIm 
friendly  nation  are  considered  as  oiieii  to  tlie  public  ships  of  all  jtowers  with  whom  ii 
is  at  peace,  <ind  thqf  arc  Huitpoxnl  to  fiitir  xinli  ititrt>^.  and  to  rfinuiii  in  them,  while  allintid 
to  remain,  under  the  protection  of  the  Government  of  the  place. 

When  private  individuals  oi"  one  nation  spread  themselves  through  another  as  liiisi 
ness  or  caprice  may  direct,  mingling  iiidiscriiiiiiiately  with  t^ie  inhabitants  of  tliat 
other,  or  when  merchant-vessels  enter  for  the  purposes  of  trade,  it  would  be  obviously 
inconvenient  and  dangerous  to  society,  and  woiihl  subject  the  laws  to  continual  infnu- 
tiou  and  the  Government  to  degradation,  if  such  individuals  or  merchants  did  not  owi- 
temporary  and  local  allegiance,  and  wore  not  amenable  to  the  jurisdiction  of  ilir 
country.  Nor  can  thi;  foreign  Sovereign  have  any  motive  for  wishing  such  exeniption. 
Hi.s  subjects  thus  passing  into  foreign  couunies  are  not  employed  by  him,  nor  are  tlii'V 
engageii  in  national  jtursuils.  Consequently,  there  are  powerful  motives  for  not  rx 
eiupting  persons  of  this  description  from  the  jurisdiction  of  the  country  in  which  llnv 
are  found,  and  no  one  motive  for  requiring  it.  Th«i  implied  license,  therefore,  nnilri 
which  they  ent«H'  can  never  be  construed  to  grunt  such  exemption. 

]Jut  in  all  respec'ts  ditlerent  is  the  Hitiiatioii  of  a  public  ariniHl  ship.  She  coustitntts 
a  part  of  the  military  force  of  her  nation  ;  acts  under  the  immediate  and  tlirect  com- 
maud  of  the  Sovereign ;  is  ein|)loyed  by  him  in  national  objects.  He  has  many  am! 
powerful  motives  for  preventing  those  objei-ts  fnuii  being  defeated  by  the  interfeniu'i' 
of  a  foreign  State.  Such  interfereiico  cannot  takr  place  without  atVtictiug  his  imwii 
and  his  dignity.  The  implied  license,  therefori;,  under  which  such  vessel  enters  a 
friendly  port  may  leasonaldy  be  cou.strued,  and  it  sei>ms  to  the  court  ought  to  be  lou- 
strued,  as  containing  an  exemption  from  the  jurixdietion  of  the  Sorereiijn  within  whose  ter- 
ritory she  claims  the  rights  of  hospitality. 

Iljion  thestj  principles,  by  the  iinanimouH  consent  of  nations,  a  foreigner  is  aineiiablc 
to  the  laws  of  the  jdace  ;  but  certainly,  in  practice,  nationx  hare  not  net  anncrled  Ihiir 
inrixdiction  over  the  public  armed  ships  of  a  foreign  Sovereign  entering  a  port  iqicii  I'm 
their  receiition . 

The  words  of  IMuntschili  are  : 

4.  Other  (mthoriti**!*. 

Exceptioiielleiiieut    oil    acconle    l'extf'iTitorialit(>    uux    iiavirt-*  ili* 


m 


KRITISH    SUPPLEMENTAL    AROrMEXT. 


4'2i> 


ive  lit  r  i»r 
I  doVu  ill 
vith  tluiso 
tioual  law 

11,     lliUltf 

li  Coiiiirt'r 
I.  .'514,  ;ii:.. 
L84  of  tlic 


3.  riic  i-H-i  .•  '• 

)S(^llt("(l    I'l   ;i 
liat    ilbHiililtr 

ff  iity  coiilii-. 
by  coiniiiuii 

faith  iitijjlii 

iiotici',  I'Xcr- 

UCt'iV(!(l  olili- 

)!"  t'vury  Suv- 
[  not  sffiii  til 
One  Sovci'- 
;ati(ins  of  the 
liinisflf  or  it- 
iittT  ii  foici'.'ii 
iiniiiiitii's  lii- 
tii)iihit»'<l,  nil' 

s  (nunmoii  iii- 
ict'K  with  fUih 
nitlcrstooil  I" 
lictiim  wliitli 

liir    l)OI■t^,  111' 

iition,  notice 
ports  (if  a 
itli  whom  it 
if/i(7('  uU'xi'tl 

thor  ax  hiisi- 

iintH  of  tiiiii 

b()  olivionsl.v 

tinnal  uifim- 

(litl  not  owr 

ction  of  tlir 

cxtMnplioii, 

nor  arc  tlir.v 

H  for  not  rx- 

I  which  lhf,\ 

rcfore,  inuli'i 

le  constitute 
I  (lirt'ct  iiiiii- 
as  many  iiiiil 
intcrft-rt'iii'i' 
w^  liis  jiowti 
ssfl  iMitiMs  a 
rht  to  be  lou- 
in  whose  tti- 

is  anicnaltlc 
port  oiHMi  fill 


s    naviit"<  <Ii' 


.'p.  111.-  mil'  •  limit 
iripiirf  III)  iii-f  v\  rnliK 
till    t>\    iiil''in.itiiili;il 


•jiitMre  dtranfjiT'i.  hnsi|n'ils  sont  tMitrr.s  dans  les  canx  d'nn  t'tat  avcc  hi  pi>nnission  (h> 
(•(•  (leiiiier. 

Mr.  Cusliiiiy,  when  Attt)riipy-(Teii(»ral  of  the  TaiitiMl  States,  in  18;m. 

tlius  stated  tlie  rule,  as  ie<!eive(l  in  the  United  States: 

A  forcifjn  ship  of  war,  or  any  prize  of  Ihts  in  connnaml  of  a  i>nblic  otticor,  poHWHses- 
111  tin'  jtort.s  of  tilt'  t'nited  States,  thi;  rijrlit  of  extt'rritoriality.  and  is  notsnbject  totlu' 
lotial  .jnrisdiction.' 

It  eannot,  tlierefore,  be  snpjMjsed  that  when  two  nations, 
l»y  both  of  which  these  principles  of  interniitioiuil  hiw  had 
lu'oii  habitiijilly  acted  on,  recoonized,  in  the  first  Kiile  of 
tlie  Treaty  of  Washington,  an  obligtition  to  "  use  due  (liliifcnvc  to  prevent 
thr  (lepurtnrc  of  a  .ship  Intended  to  cruise,''^  &.C.,  from  the  *' neutral  juris- 
diction,'^ either  of  them  meant  to  anthori/e  the  other  tt)  deinand,  under 
any  circumstances,  a  violation  of  these  principles,  in  the  case  of  any 
ship  cruising  as  a  ship  of  war  by  the  public  Jiuthority  of  a  belligerent 
iit  the  time  of  her  entrance  into  neutral  waters,  and  which,  atuiording 
to  these  i)rinciples,  was  there  entitled  to  the  privilege  of  exterritoriality, 
ami  was  not  subject  to  the  neutral  Juristliction.  Had  an  innovation  of 
so  important  and  extraordinary  a  kind  been  intended,  it  would  certiiinly 
have  been  unecpiivocally  expressed ;  and  it  would  have  become  the 
plain  duty  of  any  neutral  State,  which  had  entered  into  such  an  engage 
iiieiit,  to  give  notice  of  it  beforehand  to  all  belligerent  Powers  before  it 
could  be  put  in  force  to  their  prejudice.  It  is  impossible  that  an  iict 
which  would  be  a  breach  of  public  faitii  and  of  international  hiw  toward 
one  belligerent  could  be  hehl  to  constitute  any  part  of  the  "  dili(/enee 
liiie'"  by  a  neutral  to  the  other  belligerent.  The  rule  says  nothing  of 
any  obligation  to  e.vdnde  this  class  of  vessels,  when  once  commissioned 
as  public  ships  of  wjir,  from  entraiuie  into  neutral  ports  upon  the  ordi- 
nary footing.  If  they  were  so  excluded  by  proper  notice  they  woid<l 
not  enter,  and  the  rule  (in  that  ciise)  could  never  openite  to  prevent 
their  departure.  If  they  were  not  so  excliuled,  instead  of  being  "due 
(liligeiice,'"  it  would  be  a  flagrant  act  of  tretichery  and  wrong  to  take 
advantage  of  their  entrance  in  order  to  effect  their  detention  or  capture, 
(an  Her  Majesty  be  sujiposed  to  have  consented  to  bo  retrospectively 
JiHiged,  as  wanting  in  due  diligence,  because,  not  having  ex<;linled  these 
Confederate  ships  of  war  from  her  ]»orts  by  any  prohibition  or  noti<:e,  she 
(lid  not  break  laitli  with  them,  and  commit  an  outrage  on  every  princi- 
lile  of  justice  and  neutrality  by  their  seizure  ?  The  rules  themselves  had 
no  existence  at  the  time  of  the  war  ;  the  Confederates  knew,  and  could 
know,  nothing  of  them ;  their  retrospet;tive  applicsition  cannot  make 
an  act  c.v  post  /aeto  "due,"  upon  the  footing  of  "diligence,"  to  the  one 
liarty  in  the  war,  which,  if  it  hsid  been  iictually  done,  would  have  been 
a  wholly  nnjustithible  outrage  against  the  other. 

These  principles  receive  illustration  from  the  controversy  wliicn  took 
place  in  I)ecemcer,  ISOI,  between  lirazil  and  the  United  States,  on  the 
subject  of  the  reception  of  the  Sumter  in  IJraziliiin  jmrts.  Sefior 
Tallies,  the  Foreign  Minister  of  Brazil,  wrote  thus  to  Mr.  \V«4)b,  the 
United  States  Minister  at  Kio,  on  the  0th  December,  1801 : 

Some  Powers  huve  adopted  as  a  rule  not  to  admit  to  entry  in  their  ]iorts  either  the 
privateers  or  vr'ssels  of  war  of  lielli<;erents;  otluMs  are  liolden  to  do  ijo  under  tlie  obli- 
^'iitions  of  treaties  concluded  with  some  of  the  belligerents  before  or  dnring  the  war. 

'It  hat)  been  the  practice  of  the  Uiiited  States  to  restore  prizes,  wlien  Itron^ht  into 
tiit'ir  jiorts,  if  made  by  shii»s  illegally  equipped  in  their  territory,  on  proof  of  such  ille- 
^'ule(|nipment  in  their  courts  of  law  ;  all  the  world  haviiifj  notice  of  their  rule  and  prac- 
tice in  this  respect.  It  has  not  been  their  rule  or  practice  to  seize  or  detain,  on  the 
Kruinid  of  any  such  illefrul  ei|nipinent,  ships  afterward  commissioned,  and  coming  into 
tliiir  ports  as  public  ships  of  war  of  a  recojjni/.od  belli<i;erent  Power. 


430 


SUPPLEMKNTARY    ARGUMENTS    AM)    STATEMENTS. 


ji 


;li 


IH' 


.^^! 


^m" 


iU  >:.•.. 


p;  I 


Hrii//i1  has  mnor  jilaotMl  hcrsolf  in  tliis  exet'ptioiial  conditioii,  but,  iiniler  tlio  <;i'ii(  r;il 
nil*',  \vlii(rh  admits  to  tlir  lutspiiaiity  of  her  ports  sliips  of  war,  and  even  to  a  puiv  atn  r 
compelled  by  stress  to  se«'k  it,  provided  Hho  hriiiys  no  prizes,  nor  makes  nse  of  lur  \h,^\. 
tion  ill  sneii  jiorlsfor  acts  of  hostility  )>y  takiii}^  them  as  tlie  hasis  for  her  operations. 

The  rule  adopted  by  eivili/.(!d  nations  is  to  detain  in  jtort  vessels  ecpiipped  for  \v;ii 
until  twenty-four  lioiirs  after  the  departure  of  any  hostile  vesstd,  <tr  let  them  jr,»,  r(t|iiii- 
in^i;  from  the  commanders  of  vessels  of  war  their  word  of  liomn-,  and  from  i)rivatei  is 
peeiiniary  seennty  and  promise,  tlu'.t  they  will  not  pursue  vessels  which  hail  left  imrt 
within  less  than  tweiity-fonr  honis  before  them.  Nor  do  the  rules  of  the  law  of  natii ns 
nor  iisa^e,  nor  the  jurisprndeiiee  whieh  .esiilts  from  treaties,  anlhoiize  a  neutral  to 
detain  lon^jer  than  twenty-four  hours  in  h.s  ports  vessels  of  war  or  privateers  of  lul- 
lifjerents,  unless  it  eould  be  done  by  the  indireet  means  of  deiiyiiiji  thein  facilities  toi 
obtaiiiiii<4  in  the  market  the  victuals  and  ship's  juovisinns  necessary  totlie  eontiiinaiici- 
<d'  tlieir  voyajjes.  .1  iientnil  rlio  hIiouUI  act  hi  Ihix  iintiiiur,  hicurceralhif/  in  liin  iiiirts  th, 
x'vhsiIh  of  one  of  the  piiificn,  would  lake  from  one  of  thv  hrlliyvrviils  the  creycinc  of  liiy  r'nihls. 
turn  liimmlf  lnj  the  act  into  an  ally  and  co-operator  with  the  other  belligerent,  and  would  i:hi- 
late  htK  neHlralitji, 

Without  a  prerioun  declaration,  before  the  principle*  adopted  in  Ilrazil  and  in  the  Vuildl 
SlalcH  beinij  known,  Hnch  a  proceeding  on  the  part  of  the  Urazilian  anihoiitiex  toward  the  Sum- 
ter would  lake  the  character  of  a  xnare,  which  would  not  meet  the  esteem  or  approval  of  anij 
liorernment.^ 

The  absence  of  any  rule  obliging  a  neutral  to  exclude  from  lii.s  ports 
fcreiftii  ships  of  war,  if  on'oinaUy  aihipted,  wholly  or  in  part. 
.i!;.Biurr,M-uK,V'ir.  to  warlike  nse  within  the  nentral  jnrisilietion,  rests  evidently 
l^rti 'li,i's'''''i  l\n.  \\\Hn\  {iood  reasons,  and  eantiot  have  been  unintentional. 
'"'"""■  Whatever,  as  a  nuitter  of  its  own  ind(^pendent  discretion 

and  policy,  .a  nentral  Govennuent  may,  at  any  time,  think  (it  to  do  in 
sncli  cases,  it  will  certainly  do  with  all  public  an<1  proper  lujtiee,  wliicli 
cannot  be  retrospectively  assumed  to  have  been  given,  or  af»reed  to  lie 
j^iven,  contrary  to  notorious  facts.  The  reasons,  which  in  some  <  ascs 
mijiht  make  a  jtolicy  of  this  kind  Just  and  reasonable,  as  aj'ainst  a  I*o\vt'i 
which,  fir.st  inlriiijiingf  the  laws  of  a  neutral  State  by  procurino;  vessels 
to  be  iilefjally  equii)ped  within  its  territory,  nnoht  afterward  employ 
tliem  in  war.  Mould  not  apply  to  other  cases,  whi(*h  nmy  easily  be  sup 
posed  ;  e.  </,,  if  such  a  vessel,  having'  been  disposed  of  to  new  owners 
after  her  iirst  e(|uipnK'nt,  were  afterward  commissioned  by  a  Power  not 
in  any  sense  responsible  for  that  e<|uiinnen..  The  otfense  is  one  of  \w\- 
sons,  not  of  things;  it  does  not  adhere  necessarily  to  the  ship  into 
whatever  hands  she  may  come;  even  a  ship  employed  by  pirates  in 
their  piracy,  if  she  is  afterward  (before  seizure  in  the  exercise  of  any 
lawful  jnris«liction)  actnally  transferred  to  iiuiocent  pnrchascrs,  ceases 
to  have  the  taint  of  piracy  in  the  hands  of  such  new  oVners,  as  was 
lately  decided  by  the  JTidi<;ial  Committee  of  the  Kngiish  Privy  Coancil 
in  the  case  of  the  Dominican  ship  Telegrafo.  Nor,  in  a  qnestion  of  this 
kind  between  (ireat  liritainand  the  Confederate  States,  is  it  possible  to 
assnnu^  (in  view  of  the  facts  that  the  interpretation  of  the  British  pro 
hibitij^e  law  was  disputed  and  doubtful,  and  that  intermititmal  law  had 
never  treated  the  construction,  e(|uipment,  and  dispatch  of  unarnied 
ships  of  war  by  nentral  shipbuilders,  to  the  order  of  a  belligerent,  as  a 
violati<m  of  the  territory  or  sovereignty  of  the  neutral  State)  that  tlic 
authorities  of  the  Confe<lerate  States,  when  they  commissioned  the  vcs 
sels  in  question,  were  actually  in  the  situation  of  a  Power  which  had 
willfully  infringed  British  law,  or  British  neutrality,  within  British  ten! 
tory. 

Even  if  the  latter  part  of  the  first  Kule  could  be  construed  as  tlif 

United  States  suggest,  with   respect  to  the  subject  of  the 

i.ti.r'i'..',T.V'HM'i.''i  present  chapter,  it  would  not  a|>plv  to  the  Georgia — a  sbip 

<i.  ,ra...„  thesi,,,,    whose  specnil  adaptatum,  within  British  jurisdiction,  to  war 

like  use,  the  Tribunal  i.s  asked  to  take  for  granted  without 

'  British  App.,  vol.  vi,  p.  14. 


'S. 
to  a)n;ivarri  1 

SI!  of   llcr  |Hlsi- 

r  opciMlioiis. 
ipptMl  loi-  Win 
K'lii  ffo,  rci|nir- 
oiii  luiviitt'i  is 
,  had  left  jiDit 
law  ofiiittiMis 

!l!  il  lU'lltlal  tip 
liltlMTS    lit    llcl- 

I  fiicilitii's  till 
II;  coiitiiiiiaiiri' 

II  liin  porls  Ihi 
w  of  liiy  r'nihis, 
,  and  would  i:ii,- 

id  ill  the  Vihttil 
oirard  Ihc  Sum- 
Plirovitl  of  anil 

m\  his  ports 
yor  ill  part, 
it.sevitleiitly 
liiitoiitioiiiil. 
t  discrotioii 
k  lit  to  do  lit 
otico,  wli it'll 

JJ>T0('(1  to  hf 

I  some  cii.st's 

insta  Power 

iriiio;  vcsst'is 

vjud  (Miijiloy 

isily  be  sup 

new  owners 

a  Power  not 

one  of  per- 

slii|)  intti 

y  pirtites  in 

i"(;ise  of  any 

isers,  ceases 

lers,  as  was 

ivy  CouiK'i! 

tioii  of  tliis 

possible  to 

Jritish  pro 

nal  law  Inid 

uiiariiietl 

^ereiit,  as  ;i 

te)  tliat  tin- 

led  the  ves 

which  had 

ritish  terri 

rned  as  the 
)Joct  of  the 
gia — a  sbip 
ion,  to  war- 
ied  without 


le 


MHITISH    .SrriT.KMKXTAL    AIUJIMKNT. 


431 


•*.    'nif     ihsliti.  T   nil 

I'ml-d     St.itc'*    h  '■  • 

tWr'Ct)  nliip.-*  ot    \v;i|-t<l 

riTtti!ni/fil  natUiii^ 
and  >liipH  til  :i  nt-n- 
ri'cnn?nZ('il  Stute. 


any  evidence,  thonj^li  it  is  <it  nicd  by  (Jreat  P»ritain.  and  thonjifh  tiie  sliip 
aetiially  pn)v<'d  to  be  nnsnitiible  for  such  use.  Still  less  could  the  Ilnle 
apply  to  the  Shenandoah,  a  merchant-ship,  transferred  to  the  (^onfetl- 
erates,  without  receiviiif*',  within  Hritish  jurisdiction,  any  new  equip- 
ment or  ontlit  wliatcn'er,  of  any  kind,  in  onU'r  to  enable  her  to  cruise  or 
tt)  be  employed  in  the  C«)nfederate  service.  It  is  clear,  beyond  contro- 
versy, that  when  the  Shenandoah  entered  the  port  of  Melbourne  as  a 
public  ship  of  war  of  tlu^  (Jonfederates,  intthiiij;  had  been  done  to  her, 
ill  any  i)art  of  the  British  (h)minioiis,  whicdi  could  be  so  much  as  pr»'- 
tendcd  to  be  an  infrino«'iiit'iit  of  the  Urst  Kiile  ol  the  Tretity,  or  of  the 
law  of  nations,  or  of  any  liritish  law  whatever.  And  yet,  in  the  Arj4;u- 
iiieiit  of  tJie  United  States  (pp.  lliO,  IL'I)  a  statement  by  tlie  rnitcd 
States  (.'onsul  at  Melbourne,  in  a  letter  to  Mr.  Seward,  to  the  erte(;t, 
that,  in  some  (conversation  with  him,  tin*  Colonial  Law-Olhcers  iiad 
'•nccnial  to  atlmit  that  she  was  liab.ie  to  seizure  and  condcMunatioii  if 
found  ill  JJritish  waters,"  is  <>ravely  l)rou;;ht  forward  and  seriously  com- 
iiieiited  on,  as  a  reason  why  she  oujihtto  Inive  been  seized  at  Melbourne. 
The  Argument  of  the  United  States  suj,';;ests,  however,  a  distiiicti»»ii 
between  "public  ships  of  r<*coonized  nations  and  Sover- 
eifjns"  and  "  public  ships  belouoinj.-  to  a  bellij,'erent  Power 
wliitih  is  not  a  recoffnized  ^Stato.'^  For  such  a  distinction  there 
is  neither  principle  nor  authority.  The  passaj^e  cited  in 
the  British  Summary  (p.  .'il)  from  the  jutloimmt  of  Mr. 
.bistice  Story,  in  the  case  of  the  Santissima  Trinidad,  states  tlu' true 
piinciplesapplicable  to  this  part  of  the  subject.  The  ship  Indepen<lencia 
del  Sud,  whose  clmracter  was  there  in  controversy,  had  been  commis- 
sioned by  the  revolutionary  (loveriiment  of  Buenos  Ayres  : 

"Tlicii!  is  aiiotliiT  oliji'ctioii,"  saiil  tlii'  loiuiii'il  .Indigo,  '•  tiiircil  a<j;aiiist  flu-  aibnissinii 
of  tliis  voNsi'l  to  tlir  ]uivilrf;rs  ioiil  inuiiiiiiitii's  of  a  iiiMdir  sliiii,  wliiidi  may  wtdl  In- 
ili.s|M>K»'d  of  in  coiinectioii  witli  tiio  i|iii-stioii  ahviidy  considiM'iMl.  It  is,  tliat  Jiiiriios 
Ayivis  lias  not  yet  Ik'<'ii  acUiiowIcdjfi'd  hs  a  sn\crri<rn  indrpriiili-iit  (lovi'i'iiini'iit  )>\  tlit- 
i'.xiH'titivi-  or  lA'jiislaliiri'  of  tlu'  Uiiiti'd  Stali.s,  and,  tlicii-fori',  is  not  I'lititli'd  to  liavi- 
lipr  sliips  of  waf  i'i'ro<rnizi'd  by  onr  Coufts  iis  national  sliijis.  Wi-  havt',  in  fornii'rraM's, 
li.'iii  oi-casioii  to  i'X|irfss  onr  opinion  on  this  point.  'J  ho  (iovi;i'nini'nt>  of  tlit!  I'niti-d 
Stiitt's  has  frcojjnizcd  thi^  ('.vistciictiof  a  civil  war  lii'twi-i-n  .S|>ain  and  hrr  colonii-s,  and 
liiis  avowed  a  ili'tfiininiitioii  to  roinain  ncntial  tictwcin  tin;  paitii'.s,  and  to  allow  to  each 
the  saiiii'  ri^fhr  of  asylitin  and  hospitality  and  intrfcomst'.  Kavh  jntrli/  in,  Ihniforr. 
(hdiicd  by  iix  a  bvllificniit  luilioii,  haviiiti,  go  fur  ax  coiiiTniK  iin,  the  sonrtifiii  lii/hlnof  ivar, 
;iiul  cntithd  to  bo  icspcitiMl  in  the  oxcicisi'  of  those  lij-hts.  Wo  cannot  intciicii'.  to 
the  prcjndiec  ofiiithcr  bcllif^ercnt,  withont  inakiiifj  oinsflvcs  a  party  to  (lie  <;oiitcst. 
and  departing;  from  the  posture  of  iientrality.  All  captures  made  liy  each  must  lie 
ciiiisidered  as  haviiif;  the  same  validity  ;  and  all  tin  imniiiiiHicH  which  nun/  he  iiaimcd  hij 
imhiic  ghipH  ill  onr  ports  under  the  law  of  nalionx  mnxl  he  eonxidered  axeqiialli/  the  right  oj 
mrli." 

In  like  manner,  in  the  lecent  case  of  the  Hiawatha,  (a  British  juize, 
taken  by  the  United  States  at  the  commencement  of  the  late  civil  war,) 
when  the  question  arose,  whether  the  civil  contest  in  Anu'iica  had  the 
proper  lejial  character  of  war,  J ii .stum  helium,  or  that  of  a  mere  domestic 
revolt,  and  was  deci<le<I  by  tlie  majority  of  the  Suineme  Couitofthe 
United  States  in  accordance  with  the  former  view,  Mr.  -lustice  drier, 
deliverinj;  the  opinion  of  the  majority,  said  : 

It  is  not  the  less  a  civil  war  with  helli;j;erent  jiarties  in  hostile  array  hecanso  it  may 
lie  culled  an '•  insnrrcctitui  "  by  one  side,  and  the  insnrjfeiits  Ins  considered  tis  rebels 
111' traitors.  It  is  not  ne<'essary  that  the  inde|iendence  of  the  rc.'olled  jirovinee  or 
State  lie  ackiiowh'dK«'d,  in  order  to  constitute  it  a  jiarty  belli<ierent  in  a  war,  accord- 
ing to  the  law  of  natiohs.  Foreign  nations  ackiiowledi4;e  it  as  war  by  a  declaration  of 
iitMitrality.  TluM-onduion  of  neutrality  i-annot  exist  unless  then;  hi!  two  bellij^en'iit 
partiis.  In  the  case  of  tlie  Santi.ssiina  Trinidad  (7  Wheaton,  IJI17)  this  court  says; 
"The  (Joverninent  of  the  l'nitt«l  .States  has  recojj;ni/.ed  ihr  existence  of  a  civil  war  lie. 
ttteen  ypaiii  and  licr  colonics,  ami   has  avowe<l    her  detcrniinatiou  to  remain  neutnil 


-II 


4:\2 


HliriM-KMKNTAUY    ARfJIMKNTH    AM)    STATEMENTS. 


lii'twDHii  the  )ttirtii<s.     Each  party  in  tlu>rot'onf  <1<'(mii<mI  l»y  uh  a  belligerent  nation,  liii\. 
iiij;,  HO  far  HH  conct'rnH  ns,  the  Hovon'ijjii  liji'its  of  war." 

Professor  lllmitschli,  in  a  <!(nitrilmtion  to  t\n'  "  Kcvno  (1«^  ilroit  iiitci 
iiatioiiiil"  for  1S70.  (pp.  ir>L'-17(>,)  in  wliiirh,  ujmii  tluMissuinptioiis  oi 
fact  contaiiu'd  in  a  s[K'eeli  of  Mr.  Sinniiu'r  in  the  Senate  of  tlie  United 
States,  (antl  on  tliose  asHiunptions  only.)  lu^  favors  sonic  part  of  the 
eiainis  of  tlu'  United  States  aj;ainst  (Jieat  Britain,  so  far  as  relates  to 
tile  pai'tienlar  siiip  Alal)ania,  <listin(;tl,v  lays  down  the  same  do(;triiie: 

1)11  rcstt!,  Ic  parti  rovoltf'-,  i|ui  opcrc  avec  dcs  corps  d'arniee  niilitaireniciit  orjjjaiiisrs, 
ft  entrfprcnd  »lf  I'aii't!  trlniiiplicr  par  la    j;Mi'rre  mm   |)roi;raMiin*!   pi>Hti<|M<>,  airjl,  :iliiis 
nii'-MM-  (|M'il  Mc  Inline  itoiiit  mm  ('tat,  toMt  aM  iikiIms  comimic  s'il  cm  coM.slitMait  mm,  an  liiii 
el  place  iI'mm  t'-tat  i"an  Stjiates  statt"),     11  alliiMie  la  Justice  dt;  sa  canse,  et  !a  lc;;iii 
Miiti'  (le  sa  MiissioM.  (HV'c  luic  bi)inie  J'oi  vijnh' I'l  rcUv  qui  xc  pn'mniu'  <1f  ilroil  die::   loiil  iln 
lii'lliin'ranl.  (l'a,<;>'s  l.'i.'i-J.'iCi.) 

Aj;ain : 

I'ciKlaMt  la  friicrn-  lui  ailinet,  dans  I'mti'rcl  de  riiiiMiaMitt-,  ijiir  Irs  ilnir  jmrlirx  «.v(amh' 
d''  h>iinc/'oi  pi>;ii'  \n  di'-d-w-n'  <l'.'  Iciir-t  pi'i-roadii  s  dr.>i{i.     (  I'.i;-  \'*-'.) 

And,  at  paj-i's  4»J1,  402 : 

Si  I'on  tieiit  <()iM|(te  de  toiites  ces  e(Misid<''ratioMs,  om  arrive  a  In  coiKdMsioM  sMivaiitr: 
('tats  ('■iirttpi'iMis,  CM  pi-cseMcc  de  la  sitMatimi  (|Me  croaient  les  faits,  l.i  liittc  eii^ii;;! 
{.''t'M  <|iu',  a  C()M.sidcrei'  (I'mm  poiiir  de  viie  jtMpartial,  tcl  (jiTil  s'oUVail  el  s'lmposaii  mux 
eiitre  I'MMioM  et  l;i  confi'dei'al i(Mi,  c'cst-a-dire,  (Mitre,  hi  ford  et  le  slid,  il  etait  alisolii 
incMt  iniixissilile  de  ne  pas  adMieffr(!  (|Me  les  (''lats-rnis  fiissenl  alors  eMy;an<''s  dans  iiiir 
j;raiHl(!  <;Merre  i  i\  ile.  on  les  deiix  partis  avaieiit  le  caractere  de  ])nissiiMces  politi(|Ui'' 
nieiit  et  niilitaireineiit  (njraMis('cs,  se  faisaiit  I'Miie  a  I'aMtre  la  ;iMerre,  sniviiiit  Ic  modi 
(|Me  le  droit  des  y;ens  reconnait  coiniiie  r('jiiilier,  et  aMiin('s  d'uMc  (■;jale  contiance  dans  li- 
lioM  droit.         *  *  Tout  fr  moiidr  I'lait  d'acvortl  ifii'il  if  aniit  i/iicn< .  rl  <iiir.  dnif' 

ivilv  ijuirrr.  il  u  m-ait  dinx  part'ivH  liiUiiivrmitrK. 

That  i.  the  vessels  of  which  there  is  any  question  before  the  Arhi 
\iMh.»i,.p. ,.  tiat<»rs,  and  especially  those  wliieli  are  allejjed  tohavehecn 
iLne." \i''>'il  eqiiipjied  or  adapted  f«>r  warlike  nses  within  iJritish  territory, 
were,  in  fact,  eoniniissione*!  and  employed  as  public  ships  ot 
war  by  the  anthorities  then  exereisinjjr  the  powers  of  piibli(!(ioverntii('iit 
in  the  Confedi'rate  States,  is  not  seriously  (if  it  be  at  all)  disjnited  by  tlic 
United  Staiis.  The  proofs  of  it' aboiincl  l)oth  elsewhere  and  in  those 
intercepted  letters  from  Confederate  authoritit^s,  and  other  (/onfederatf 
doiMnnents,  isn«-h  as  the  Journal  of  Captain  Semmes,  &c.,)  which  the 
lJnite«l  States  have  tnade  part  of  th<*ir  evidence  ;  and  to  which,  for  tliis 
puri)ose  at  all  events,  they  cannot  ask  the  Arbitrators  M  refuses  credit. 
All  these  vessels  were  always  received  as  public  ships  of  war  in  the  ports 
of  Fran(U',  Spain,  the  Netherlands,  Brazil,  and  other  (countries. 

••  As  to  till'  lloiid;)."  said  tln^  Mirtinis  d'Ahraiitt^s,  the  Fohmj^m  .Minster  of  Iha/il. 
writing  to  Mr.  Welili  an  the  VJ'id.Iniie,  \'^i\'.\,  '"the  Miider.sijrned  ninst  he^in  l»y  askin;; 
.Mr.  Webb's  .-oiisent  to  observe  that  if  the  President  of  INMnanibneo  Unew  that  tliiit 
steiimer  was  the  ciHisort  of  th(!  Alab :um;i,  .'is  was  iilso  the  (Jiori^ia,  it  does  not  follow, 
iis  Mr.  Webb  otherwise  arKU(!s,  that  tin;  said  I'resident  8hoiihl  consider  the  Florida.!- 
a  pirate. 

•'Aceordiii;;:  Jo  tlie  prin(d[>les  of  the  nentrality  of  the  Empire,  to  which  the  iiinlti 
sijrned  has  alicady  alluded,  all  these  V(!ssids  of  the  Confederate  Stat(!s  ar(^  vessils  ul 
war.  exhibit iii/i  tlie  lla^'  and  beariMn  the  cDunuissioM  of  tin;  said  States,  by  which  the 
Imperial  (jioveriuneiit  recoj;iii/,(>d  them  in  the  character  of  bellifjerents.'' ' 

U'pon  the  same  footing  the   Shenandoah  was  delivered    up  to  tlic 
United  States,  as  public  property,  when  she  arrived-  at  Liverpool  after 


f'ltiimiscionetl 
Ml  w;ir. 


'  Soo  Appendix  to  Case  of  the  United  Stat(,'s,  vol.  ii.  i)p.  4H(i,  4H7,  (Sumter  ;)  ioal.,  |)|', 
.'.r)0,  'i!M,  (Nashville  ;)  ibid.,  pp.  614, 6;5;5,  and  vol.  i.  p.  54:1,  (Florida  ;)  vol.  vi,  ]».  48H,  (Alii 
bama;)  v<d.  ii,  pp.  ^^^'^,  (jHO,  713,  (Geoijjia;)  vid,  iii,  p.  XVi,  &e.,  (Shenauduah ;)  also  .Mi. 
HenJamin'H  instructions,  vol.  i,  pj).  tiiJl,  6'i4. 

-  British  App..  vol.  vi,  pp.  r>9,  (50. 


KKITIMI    sll'I'LKMKM  AL    AKCl'MKNT. 


433 


t  imtion,  li;i\ 


tiie  «:iMi<'liisi(tii  (»t'  tlic  war.  And  tlioiiji;h  tin;  tt'iins  "  piratos "  aixl 
"  IH'ivattM'rs"  have  born  nvoly  applied  to  tlicsn  vessels  in  many  of  tlio 
jMiltlie  and  other  documents  of  tlie  United  States,  th(!  former  term  was 
(iiily  used  as  a  vituperative  or  ai'j;unjentative  expression,  in  aid  of  the 
objections  of  the  I'nited  States  to  the  reco^^nition,  by  foreijjn  J'owers, 
(it  tlie  belli;ier«'nt  character  id"  the  Confederates.  Neither  ('aptain 
SciiHMes,  of  the  Ahibama,  nor  any  oilier  oflicer  or  seaman  en;ia<;('d  in  the 
iiiival  seivi(M'  <d'  the  (!onfederates,  was  ever,  during?  the  war  or  after  its 
iiiiicinsion,  actually  triiated  as  a  |>irate  by  any  politictal  or  «>ther  author- 
ity of  tlu',  I'nited  States.  And  with  respect  to  tln^  denomination  of 
■privateer,"  a  juivateer  is  a  vessel  employed  by  i)rivat(^  peisons,  under 
I'tters  of  manpui  from  a  belli;:ierent  I'ower,  to  make  captures  at  sea  for 
ilicir  juMvate  Ixun'tit.  Nouc^  of  the  v«'ssels  in  question,  at  any  monuMit 
mI  their  history,  can  be  pretended  to  have  had  that  character. 


iniflifx  afi'iisiii' 


(  IIAI'TKI!    ni.— On    TlIK   SI'KCIAI-    <jlHST10N   OK   Sl'l'l'LlKS  OF  COAL  TO 
(JoNFI'.DKK'AI  i;  VKSSKI.S  IN   lIl.MTISlI   I'OUTS. 


The  next  point  which  remains  is  that  as  to  the  sui)plies  of  coal  in 
liiitish  ports  to  (."onlederate  cruisers. 

Tliat  such  supi)Iies  wer(^  alVorded  eipially  and  impartially,  so  far  as 
the  regidations  of  tJM^  JJritish  Gov<u-nment  and  the  inten- 
tions and  voluntary  acts  of  the  British  (M)loriial  authorities  thr  «',' V,'i',,'lli'rr!'' 
,iR' concerned,  to  Itoth  the  contemlin;;'  parties  in  the  war,  ""''•'"'"''""'"'''-'• 
iiiid  were  obtained,  upon  the  whole,  very  much  more  largely  by  the 
chilis  of  war  of  the  United  States  than  by  the  l'onfed(>rate  cruisers,  are 
tiicts  which  ou{;ht  surely  to  be  hehl  conclusive  aj;ainst  any  argument  of 
tlie  United  States  ayainst  (Jreat  JJritain  fouiule<l  on  tliese  supplies. 
Tluu  such  ar<;iiments  shoiild  be  used  at  all  <;an  luirdly  be  ex[daine(l,  un- 
less by  the  circumstance  that  they  are  Ibund  in  docunuMits  maintaining' 
the  pro[>ositions  that  the  belligerent  character  of  the  Confederates  ou;^ht 
never  to  have  been  recoy;nize»l,  and  thai  impartial  neutrality  was  itself, 
111  this  case,  wrongful.  J^et  those  propositions  be  rejected,  and  their 
mvii  repeated  acts  in  taking  advantage  of  such  supplies  (sometimes 
largely  in  excess  of  the  limited  quantities  alh>\ved  by  the  JJritish  regu- 
lations) are  conclusive  proof  that  the  United  States  never,  during  the 
war,  held  or  a<;ted  upon  the  opinion  that  a  neutral  State,  allowing  coal 
ti)  be  obtained  by  the  war-vessels  of  a  belligerent  in  its  ports,  whether 
with  or  without  any  limitation  of  (piantity,  was  guilty  of  a  breach  of 
iioutrality  or  of  any  obligation  of  international  law. 

Tiiat  such  supplies  might  be  given,  consistently  with  every  hitherto 
n'cognized  ride  or  princii)le  of  intermitioual  law  is  abundantly  clear. 

Chancellor  Kent,  in  his  commentaries,  iirst  lays  down 
the  rale  against  using  neutral  territory  as  a  b:ise  of  warlike 
I'lierations,  as  that  rido  had  been  understood  and  acted 
upon,  both  in  (Ireat  IJritaiu  antl  in  America  : 

It  is  ii  vii)ljilii>ri  of  iiciitriil  tt'iiitory  lor  a  bclli^jcitMit  ship  to  take  licrHtivtion  within 
I,  in  (Milci-  to  i-ariy  <ii«  lioslihi  cxpiMlitions  ti»»m  tlu'iicf,  or  to  hoikI  ht-r  Itoats  to  eaiituro 
V'swls  lM'ih}j;  ln'yond  it.  No  osc  of  iii'iUral  tt'iritory,  for  tht^  joirposc^  of  war,  can  b« 
l«'iuiiUe<l.  This  is  the  (toctriiio  '»f  tlio  GovoriiiiioDt  of  the  I'liited  8tat«!s.  It  was  de- 
'lartnl  Judicially  in  England,  in  the  caso  of  tlio  Twee  (icbioedeiH;  and,  thoiif^h  it  was 
not  luiderstood  that  the  prohibitions  extende«l  to  remote  objects  and  nses,  Huch  us  pru- 
iiiriiig  provisions  and  other  inuoctiMit  articles,  which  the  law  of  nations  tolerated,  yet 
I  was  t'xi»licitlv  declared  that  ho  jirojlnuilc  aitx  of  irar  were  hi  any  manner  to  be  allowal 

28  C  ' 


'2.  Siirb  H>i|.|tlii'!i 
(ire  not  » itliiii  tli»' 
nd*'  iiH  1*1  iio)  iHiiiri 
iii-iiti.il  tt'rnluiy  ii-« 
a  li.i»«?  of  upt-nttiMiiM, 


t34 


SI  ri'I.KMKM  ARV    .\R<i(  MKNTS    AND    SIATKMKNTS. 


rlif ' 

m 

1  ^?''^ 

i    mi 
/J' 

■'■4 

f<-\ 

\-^ 

( 

«•  ^ 

i 

i  .ii. 

A 

I    '.r 

J 

|-:| 

{ 

( 

*      ■.  s 

1 .; 

i 

ii   ^1 

.  J 

1    ■-  ' 

■    .'i' 

1    r 


pi: 


to  oriyiiiuli  on  niiilnil  iiroimil.  No  art  tif  lumtility  is  to  Im-  coiniiitMii'fi)  on  nciitriil  kioiiihI 
Nu  ini-iiMiii'u  Ih  to  III-  tukoii  that  will  li-ud  to  inniM-ilinto  violfin-r.     (  Vol.  i,  \mh>'  II-> 

At  pjiK"  l-^^  ''♦'  '*♦'*.>■'*  '• 

TliiTr  is  no  <'\t'i'|)tion  to  llir  riilf,  tlmt  every  voliintttiy  •■iitrniii'f  into  nentml  t< 
rifory,  willi  liostile  |inr|io.si>N,  is  aWsolnlely  nnlawinl.  Tin*  iit-ntriil  lionler  nnitit  mtt  Ur 
ime*!  iiH  II  hliclti'i-  tor  initkin^  |)!'*>|)iii'iitioiiH  to  reiittw  tlii>  tittiick  :  iinil,  tlionirli  llic  nrn 
trill  is  not  ol)li(;i-<l  to  rt'lusc  a  |>aNMiip^  and  sat'et.v  to  tin-  loirsiiin^  piti'ty,  In*  oiiulit  to 
eanse  liiin  to  depart  as  soon  as  possilile,  and  not  permit  liini  to  litt  Wy  and  watrli  in^ 
opjiortnnity  tor  tiirtlier  eontest.  'I'liis  would  be  inakin^;  the  neutral  counliy  dii<iii. 
auxiliary  to  t\w  war,  and  to  the  eoniiort  ami  support  of  om;  |iarty,"  ' 

Oitolaii  (Diplomatif  do  lit  M»'r,  vol.  ii,  p.  li'.H)  snys  : 

ho  prineipe   i^eneral  de   ]'in\  ioiahiliti- du  tenitoire  ueutre  e\i;;<-  ;n\f->\  ijiie  I'l  iii|>!  . 
do  ce  territoire  reste  IVane  de  toute   mesure  on  nioyen  de  jjuerre,  tie    run   des   In  lli-. 
rants  eontre  I'aiitre.  ("est  une  olt]iH;ation  |iiMir  ehaeun  des  lieili^rerantsde  s'en  ah>ii'ii  i 
<''est  iinssi  un  devoii' pour  ri'.lat  nuutre  d'e\i^;er  eetttt  ibiiHlentiou  :  et  e'est   aiissi  |iiiiii 
lui  nil  devoir  d'y  veiller  et  d'eii  mainteiiir  rol»ser\ali(Ui  a  reneontre  de  <|ui  (|ue  n  ^ii 
Aiiisi  il  appartieiit  a  I'aiitorite  i|ui  eoinmamle  dans  les  lieiix  iieiitres  oii  des  naviio  In  1 
lijjeraiits.  soit  de  ^jiierre,  soit  de  eomnieiee,  out  et<-   revns,  de   piemlie  les   iiiesiin  •<  ii. 
cessaires  poui'<|Ue  I'asile  aecordt'  iie  t(Uiriie  |ias  eii  niaeliiiiatioii  hostile  eontre  i'liii  i!i'< 
lielli^t'iallts  ;    (loiir  eiil|ieelier  specialemelit  iju'li  ne  devielllle  Ull  lieu  d'oil  les  li:itilMi'iit> 
de  guerre  (ui  les  eorsaires  siirveilleiit  les   navires   enneinis   p<iiir  les  poiirsiiivie  et  li> 
(•oiuliattre,  et  les  ea)iturer   lorsiiu'ils  seroiit    p;ii\eniis  aii-dela  de   la   iiier   terrilcuiiili 
I'lie  de  ees  niesnres  coiisiste  a  eiupeelier  la  sortie  sininltiiiiee  des  navires  appai'leii;ii<r 
ii  des  I'liissanees  eiineinies  I'liiie  de  I'autre. 

Afjfiiiii,  at  \y.\iio  302: 

Si  des  t'orees  iiavales  lielli;rerantes  soiit  stationiiees  daiis  wiu'  liaie,  dans  iin  lleuvi.  ixi 
a  reinlioiieliure  d'uii  lleuve.d'iin  l-!tat  neiifie,  a  dessein  de  proliterde  eette  station  iiiii.i 
exi-reer  les  droits  «le  la  fiiierre,  les  eaptnres  laites  |iar  ees  loiees  navales  sont  aiis:«i  ill-  • 
jiiiles.  Ainsi.  si  iiii  navire  lteHi;,'eraiit  inouille  on  eroisaiit  dans  les  eaiix  iieiitre.>*  tiip 
tnre,  an  inoyeii  de  ses  einliareations.  iin  hatimeiit  i|iii  st^  troiive  en  dehors  des  lilllitl^ 
de  ees  eaiix,  ee  Itatiment  ii'est  pas  de  hoiiiie  prise :  liieii  ijiie  reiii])loi  de  la  I'orce  n'lii' 
pas  «'ii  lieu  dans  ee  eas,  siir  le  territoire  iientre,  m'-aninoiiis  il  est  le  it'-sultat  de  riisin.! 
de  ee  territoire  ;  et  iiii  tel  iisojje  pour  des  desseins  liostiles  n'est  pas  perniis.- 

The  above  iiassajjt's  supply  tlio  obvious  ami  siiflicipiit  oxplaiiatioii  oi 

tlie  woiils  "  base  of  naval  operations."    Neutral  territory  i> 

.,v''ij\'',.'r,ir  \'h";.  not  to  be  usetl  "  in  ortler  to  earryoii  hostile  operations  IVoin 

" ""''""" •    tlienee,"  or  "  as  a  shelter  for  nuikino^  })reparjiti()n8  for  attack:' 

(Kent.)  No  aet  of  hostility  is  to  eominenee  or  ori}>inate!  there.  "Chip 
tares  made  by  armed  vessels  stationed  in  a  river  of  si  neutral  Powei',  oi 
in  the  month  of  his  rivers,  or  in  harbors,  /or  the  pvrpose  ofi;ir)rlsliuitli' 
riyhts  of  irar/rom  that  rirer  or  harbor,  are  invalid;"  (IMiiilimme.)  h  i« 
not  to  be  made  a  plaee  "  d'oti  les  batiments  de  j^iierre  snrveilleiit  It'^ 
mivires  ennemis  pour  les  ])onrsnivre  et  les  eond»iittre  et  les  eaptiin'i. 
lorsqu'ils  sont  parvenus  an  tlela  de  la  mer  (erritoriale ;"  (Ortolan.) 

It  is  not  to  "  servir  de  station  atix  batiments  des  rui.s.sanees  belliui 
rantes ;"  (IletVter.)  It  is  not  to  "  servir  a  tendrt?  des  embi'iehes  a  I'mi  tl»'^ 
iK'Higi'titnts ;"  (Ilantefeuille.)  JJellifierent  ves.sels  are  not  to  station  tlii'in 
selves  or  to  eruise  within  it,  in  order  to  look  out  for  enemies'  ships,  "iii 
eore  (pi'ils  sortent  de  letir  retraite  jwur  aller  les  atta(pier  liors  les  limito 
de  la  juridiction  nentre."     (Ibid.,  and  IMstoye  et  Duverdy.) 

The  phrase  now  in  tiuestion  is  a  short  expression  of  the  prineiplo  tliat 
neutral  territory  is  not  to  be  u.sed  as  a  place  from  which  operations  oi 
naval  warfare  are  to  be  carried  into  etfect;  whether  by  single  ships,  or 
by  ships  combined  in  expedition.^.  It  expresses  an  accepted  rule  of  in 
ternational  law.  Any  jurist  who  mio-ht  have  been  a.sked  whether  iieiiti:il 
ports  or  waters  might  be  used  as  a  base  for  naval  operations,  would  liavr 

'  Soo  also  WhL'aton'.s  "  Kleiueiits,"  (Lawrence's  edition,)  p.  T"<JO ;  i'liillimore,  vol.  ii.  1' 
452. 


-See  also  IletVter,  (Herjjsmi,)  pp.  "iT.'i,  '276, *.i7!>:  and  Ilaiiteteuille,  vol.  ii,  p.  '"i:  (': 
"  Doreclio  Interiiaeional."  ii :  I'istoye  nt  iJnverdy.  vol.  I.  p.  1<»S. 


,1-0, 


IJRITI.sIl    «l  IM'LKMKNTAL    AKl.l  MKM 


435 


«i  (|in'  I't  iii|il  ■ 

III     <|l'S     1)l'lli'^' 

,»•  s'l'ii  ali^li'iii . 
'est  aii.ssi  |iiiiii 
ijiii  line  If  M'li. 
(Ics  iiaviio  liil 

CS     lllt'SlllfS    II'- 

••(iiitn-  I'liii  i'.'- 
til  Ics  liiitiiiii'iil^ 
poiirsiiivii'  fl  li' 
iH'i-  tenitmiiil'' 
n's  ai»imrt<'iiiiiif 


ins  nil  llflivc.  im 
I'ttc  station  itttiir 
's  sont  aiissi  ill'- 
(iix  iK'iitri'sciiii 
liois  tlfs  liiniti'^ 
df  la  lone  ii";iii 
siiltat  tie  I'lisin;'- 
'iiiiis.- 


fully  oiitor  a  lu'iitnil  port,  iviiiiiiii  tlicrr,  supply  ImtscH"  with  piovis 
iiimI  otluT  iMMM'ssiiiios,  H'piiir  (l;uuii{>«'s  siistaiiu'd  liom  wtMi'  aiiU  tear. 


ie|ilit><l  that  they  iiti^ht  not;  anil  h«'  would  have  iiiiiU'rstuiMl  the  woimIh 
III  thr  HOiisc!  .stated  al)ov(«. 

The  above  citatio'.iH  and  I'cl'criMuro.s  furnish  at  the  same  time  tiie  nei^ 
I'ssary  limitations  undei*  whieh   the  phrase  is  to  h(>  under- 
stiMMJ.    None  of  these  writers (pu'stion — no  writer  ot'atithor-  h.m.."  V,'.  u,''.'.'.' 
ity  lias  ever  <|iiestioned — that  a  bellijjerent  eriiiser  mi;;;ht 
la'w 

lilllS 

i.r  ill  battle,  replace  (if  a  sailinjy-ship)  her  sails  and  riy:;xinj,',  renew  (if  a 
>t('iiiiier)  her  stock  of  fuel,  or  repair  her  en;j;ines,  repair  botli  lu'r  sleam- 
iii;'  and  her  sailinj-"  power,  if  capable  (as  almost  all  ships  of  war  now  are) 
oriiiivi^'atin}>' under  sail  and  under  steam,  and  then  issiu;  forth  to4;oiitiniU' 
luT cruise,  or  (like  the  Alabama  at  CherboiU};)  to  attack  an  enemy.     'Mis 
\  sont  admis  a  s'y  pritcurer  h-s  vivres  nc  essain's  ft  a  y  faire  les  n'pari;- 
lidiis  iiulisj)ensables  ]>our  repreiulre  la  mer  ct  sf  lirrcr  <U'  Hourcaii  tat.r 
oiiniitioiisdelo  {/Uffre  ;'^  (Ortolan;  lletfter.)     "  I'uissortir  librement  pom 
illiT  livrer  de  nouveaux  combats;"  (Ilanteteuille.)     The  connection  be 
twt'cii  the  act  dime  within  the  neutral  territory  and  the  hostile  operation 
which  is  actually  jM-rfornuMl  out  of  it,  must  (to  be  within  the  prohibition) 
lie  "proximate;"  that  is,  they  must  be  connected  directly  and  immedi 
.itcly  with  one  another.     In  a  case  where  a  cruiser  uses  a  neutral  port 
to  lie  in  wait  for  an  enemy,  or  as  a  station  from  whence  she  nuiy  seize 
ii|ioii  passiufi"  ships,  the  connection  is  proxinuite.     Hut  where  a  crtusi'r 
lias  obtsiined  provisions,  sailcloth,  fuel,  a  new  mast,  nv  n  new  boiler- 
plate in  the  lU'Utral  port,  the  connection   between  this  ami  any  subse- 
ijiu'iit  capture  she  may  nmke,  is  not  ''proximate,"  but  (in  the  words  of 
Lord  iStowell,  quoted  by  Kent,  Wheaton,  and  other  writers)  "  remote." 
riic  latter  transaction  is  "universally  tolerated;"  the  other  universally 
loriii(Ulen. 
It  is  evident  that  if  this  phrase,  "  base  of  operations,"  were  to  be 

lakeii  in  the  wide  and  loose  sense  m>w  ctmtended  for  by  the     .,  ,, ,,„m,..m„i 

I'liited  States,  it  mij^ht  be  made  to  compreheml  almost  ,',i, ';.'',  V.'.-.'/t  I,!!.' 


hich  a  belli 


iser  had  tak 


ivory  possible  case  in  wnicn  a  oeiii«;erent  cruiser  nadtaivc 
advantajje  of  the  ordinary  hospitalities  of  a  neutral  pmt.  It  would  be 
III  the  power  of  any  belliuereiit  to  extend  it  almost  indelinitely,  so  as  t(» 
lastoii  unexpected  liabilities  on  the  neutral. 

Does  it,  tiien,  make  any  <litVerence  that,  in  the  second  Itule  of  the 
Tii'aty  of  Washinj;toii,  the  i)rohibition  of  tlu'  use  of  neutral 
ports  or  waters  as  "  the  base  of  naval  operations,"  by  (»ne  .iiH.„,','J''th'- v.-nM 
bi'llj;,'('ivnt  against  the  other,  is  combined  with  the  further  i.^/.r' '!./'' m'h""" 
proliihition  of  "the  renewal  or  auji'meiitation  of  military 
supplies  or  arms  V  .So  far  from  this,  the  (unitext  only  makes  the  meaii- 
iii^'of  the  former  part  of  thi^  Uiile  more  clear.  There  can  be  no  reason- 
able doulit  as  to  what  is  meant  by  the  words  ''renewal  or  au;;im'ntation 
t)l'  military  supplies  or  arnjs." 

At  page  12-  of  hisC'ommentaries,  (vol.  i,)  Chaiu;ellor  Kent     ^  „,,, ,,  .„.  „, 

jijiy,!  .  <  Uiiiii  I  ilnr  Kt-nl. 

Tile  (Mivcriiiufiit  ol'  llio  riiiti'd  Stales  was  waiiaiitcd  liy  tlm  law  and  inactict'  of 
iwiimis.  in  tlie  dt'idaialions  iiiaih'  in  JTlKt  of  tin;  rules  of  iifiitralily,  wliicli  were  pai- 
iiciilaiiy  iveof^ni/ifd  as  necessary  to  be  cdisoived  by  tlio  hi'llif^iTunt  rowers  in  their  in- 
imoiiisc  witli  this  country.  These  rules  wore,  that  the  original  arniiiij^or  e(|nipiiin«; 
"t  vi'ssi'ls  in  our  ports  by  any  of  the  I'owers  at  war  for  inilitury  service  was  nnlawfiil, 
iikI  III)  such  vessi-l  was  entitleil  to  an  asylum  in  onr  ports.  The  e<|ni|iuient  by  them 
"I  t'livcriiiiient  vessels  of  war  in  matters  which,  if  done  to  other  vessels,  wonhl  l)e 
'I'pliciiltlc  equally  to  commcrco  or  war,  was  lawful.  The  er|uipineiit  by  them  of  ves- 
>'!»  litted  for  meiThandiso  and  war,  and  applicable  to  either,  was  lawful ;  but.  if  it 
were  of  a  nature  solely  appliuublo  to  war,  was  unlawful. 


i 


% 


■'f 


ii 


430 


Sl)'|'LK.MBNTAI{Y     \li'(;l  MKNTS    A.N'h    STATKMK.VTS. 


T!it  Iviih's  ol  l'r«>.si<lont  Wasliinjutoii  (August  I,  171);>)  si)«>a'v  i'ov  tlicin- 
H.  i',.-.,,i.  n .  ><t'lN'<'s.     ►Sonic  of  tlu'iii   (ii.s  tlu'  <lrli;  clriirly  extH"(l<'(l  aii\ 


7'7;V.!r'«.',.i ''.!'!' '  <>l>lij,^itti(>ii  previously  iin'iiinbcnt  upon  tli«'  I'liitcd  Stiiics  ii\ 
•"""""•■■  iii(«*iiiatioiiiil  law. 

Tlicy  were  as  follows : 

1.  'I'ln'  (.riii'miil  iirii'.iiiii  ami  I iiiiijiiiiiiii  !>{'  vcsm'Is  in  tin'  |»iits  ol'  iIm'  I'liiti'd  Sl:iti>li\ 
iiiiy  of  the  ln'llint-ri'iit  purtifs  I'nr  niililiirv  scr\  ici'.  oUriisi vc  tir  ilrlViisisi-.  is  (1it||i,.J| 
niilawrnl. 

■J.   l^>|iii|>iii!'iits  of  iniTiliaiil-vtssi-Is   liy  <'illii'i    of  ( hi' In  lli^i'iciit  piirtics  in  i  li.  |i(iiiv 
ot  \\u'  I'liitcd  Stall's,  iviirclv  /'or  ihc  airoiiiiiiodatioii   nl'  tlii'iii   as  siidi.  j.s  (Iri'iiiiil  Ijju 
M. 

'.'.  I'liiiiiiiiii  iil-<  ill  Ihr  fioi  Is  of  llir  I'liilril  Stiilfs  of  (■(■ssiln  of  inir  in  Ihi  iniiiiciliali'  sviri,, 
of  till-  f!oi\  riinii  ill  of  i.nii  ol'  Ih  inUiiji  rviil  i>iirlic>-.  irhidi.  if  dour  lo  ollii  r  nnxrln,  irmilil  ]., 
of  (I  diiiihlliil  iiiihiyr,  ti.s  liiiini  iiiiiiliiiihlt  litliivlo  (•niiiuinT  or  iror,  ore  Uininil  Imrlitl : 
I'M  .  |il  t  liosr  u  liicii  shall  iia\  <'  iiiadc  |itl/.('i»l'  I  In-  sulijccts.  iicuplc.  or  |iii>iM'rfy  ol'  Kiani-,., 

coiliilii;    willl    llh'ir    |iri/.<'S    into    I  lir  liofts  nl"  llic  1 'llitcil  Stales.  ])llisilail(    to  tlic  m'\i  i; 

fcciitli  Arlii'lc  ol'  our  Treaty  of  Coiiiiiieiee  Mitli  I'lai 

1.  I'.i(n.iiiiii  iil'<  ill  III!  polls  of  ilic  I'nitiii  Sliilix,  liy  iiiiy  of  the  |>aities  at  wai  wii': 
liauee.  of  11 '^1  Is  filliil  I'or  iiiiiiluiiiiUst  mill  irnr,  irlnlliir  icilh  tr  ii'ill>oiii  iiiiiimixsiiin^ 
iiliiili  urc  dnii'il'iil  ill  lliiir  iKiliiii  IIS  hiiiiij  oiipHcolih  lilliir  lo  idiiniiirn  or  ic<ir.  iiii- ilnmul 
loirj'nl.  eseepf  those  wliieh  shall  have  iiiaile  pii/c,  tVe..  (as  l)elore. ) 

.">.  fjiiiiiniii  Ills  of  anil  of  lln  nssfls  of  l-'riiinr,  in  tiie  ports  <if  the  I'nited  Stales.  ivki,u 
uri'  doiililfiil  ill  Ihiir  imliirr,  as  hi  intj  aii/iliidlili  la  roiniiicrrr  or  inn;  arc  dnmid  Imifiil, 

li.  10(|nipnients  of  every  kiml  in  the  jiorls  i  if  the  riiiled  Slates  of  pii\  a  leer-  di  i!,. 
I'li'.veisat  war  \vilh  {''ranee  aie  deemed  unlawful. 

7.  Kiiiiijiiiii  Ills  of  rissih  ill  fj,,  fiorls  of  llir  I  nilnl  Slalis  irhiiji  arr  ol'  a  iinhni  mil,!.! 
ado  fill  d  lo  nor,  an  dii  niiii  iniluirful,  except  those  st  li'.nded  (U'  \\  leeked,  as  men  I  ioiii'il  I'l 
thi'  ei;.:hleenlli  Ailiele  of  (Mil'  TriMly  with  I'lanee,  the  .-.ixleentli  id' oni  'i'rcaiy  \\  ii' 
til-'  I'liiteil  Netherlands,  t  In- ei;;hlei'nlli  of  iiiir'I'reaty  with  I'liissi.i. 

-.    \'essels  of  eit  her  ot'  I  he  pal  lies  not  at  ined.  or  aimed  )Hevions  |o  their  ei  mi  in;;  iiii- 
the   pmls  ot'  the    I'nited  Sl.'ites.  which    shall  not  have  iufiinyed  .-iny  of  the  fmi  ;;ui:i;; 
rnle>.,  nia\' law  t'nlly  enu.'iee  oi-  enlist   Iheir  own    s'llijecis  (U' citi/ens,  not  hi'ii  i;  iiiiw'i 
ilanls(d'  tile    '."niteil  Slates.  eN<ept    )nivaleeis  of  I  he  I'owersjii  war  willl  riainc,  ;iii,: 
except    tiios'^  vessels  which  have  made  ]n'i/i's.  jVe. 

(^Appendix    to   li'i'jioi!    id' Nentialily  Law  s   (  imimissiun.  pa^e  "i:! ;    I'.iit  ish  Apji' 'ii!i 
vol.  iii.) 

Tlicic  can  Ix'  no  f|iit'stioii  Hiat  iindci' tlicsc  pritiriplcsantl  ifiilcs.  ;ni\ 
ainoiint  w  iiatcvci' ol  coaliii;;'  i>y  a  wai-stcaniff  of  a  Itclliocn'iil  Ptiwci  in 
a  licntli-.l  poff  was  pet  reel ly  !awfiil. 

Siiniiai  pi'ii!<'i|>l('s  will  be  fonml  in  all   tlic  ix'st  aiitlioiitics  ot"  iiiliMii;i 
t,ional  law,  aiiplicablc  lo  the  asyliiiii  ami   hospitality  Mhicii  the  ships  ot 
waf  of  a  L».'lli;4«'i"cnt  may  ivccivc  in  niMiti-al   ports  without  a  \  iol.ttioimi 
neutrality.     tSome  of  those   authorities  are   referred   to   in    tlieiiulc.i; 
foot  of  this  pauc' 
In  accorilanee  witli  tin  se  principles,  the  .Vets  of  Conon'ss  of  1  7!M  iiinl 
isi-S  prohibited,  in  section  -I  id'  t!u'  forinei    and  s(>ctioii  .mi; 
the  latter  Act,  the,  "  increase  or  iinonicntation  of  tlictonv 
(d'  any  ship  of  war,  crniser,  or  other  armed  vessel  whKM. 
at  the  time  of  her  arrival  within  the  I'liited  Stato,  was  a  ship  of  wiii. 
crnisi'r,  or  armed  vessel  in  tlie  service  of  any  fofcio-ii  IM'incc.  vVc.  ^ 
l(liii>,'  to  III''   tuhiihir  III'  llii  i/ihis  (>/'  sitcli    fi'ssi  t.  nr  III/  cli(iniiiuii   thus 


H.    \.I-     ..I    c 


/li/ 


hoKif!  of  lurl'or  ifUiiJ<  of  liinirr  rolihir,  or  hi/  llir  idliNlion    thrntu  a/  n 
<(liiijniiciit  .soil  III  iijiiiliriililr  lo  inir." 

Ill  like  manner  th    ISritish  l'"oreiiLfiiICnlistmeiit  .\ct  ol  ISP.I,  hv  st'rii'Hi 

ikr 

iiriiH'ii 


f iii,-t(i>i'iit  Kt  t 


s,  |>rohii>ifed  IIm*  "  increase  or  anoiiieniLation  of  the  wiir 
I'orce  of  any  shi|,  <<r  vessel  of  w.ir,  or  cruiser,  or  ot  her 


vessel,  which,  tit  Ihe  time  <d'  her  arrival  in  any  pail  ol  tli' 


Ortolan,  "  UcjiIi'h  Inlei  natioiialcK  ft  l>iplomatie  de  la  .Mi  r, "  (Itli  edit 


ion,)  vol.  H.  !■■ 


ysti :   Hctfter,   "Droit,   Inlernalional."  ( ISerjison's  t  rans'alion. )  v\  I  111,  iind  no'c  ('; 


27(1;   i'liiido,  "  Kh'in.  del  hereclm  Inlernaei'mal, 


I'.fJ 


icnt,  "  (JoinmeiUaiies.    vi 


p.  liS;  Wheilton's  "  lllemcldH,"  (  Lawrelici  ,)  p.  7'.'U  ;  llailtefenillc,  "  I  (loils  et  l|i'*"" 
<1<  H  jNations  neiUrcs,"  vol.  i,  p.  HIT:  <  al  vo.  "  |  teiecho  Inleinai  ioiial,"  \ni.''l  ;  I"'" 
"  Law  of  Nations,"  vol.  ii,  p.  4W. 


I'S. 

a'v  for  tlit'iii- 
«'(l  StilU'S  u\ 


|Ut'''l   Sl.ili  -.  I,\ 
si  Vl'.    i-^  (ll'iMllili 

tics  ill  lli<  ]M)ri^ 
is  (Icfiiuil  l:i\\ 

iiuiiiiiriuli  sirri,, 
!•(  nxrlx,  il'iiillit  !'< 
<Ui  m<(l  hiir/iil  : 
IH'ity  of  Fiiiiii • . 
lit   to  ;lii'  ^1^': 

lies  ilt  will  wii' 
lioiii  <i)i;i»ii'"'imi\ 
!(•  M'KC,  (ire  ill' mill 

ti'll  Stiltc-.  ii-lw" 
mill  lull  fill. 
|irivatcfi>  III'  ill'' 

)/'  (/  iiiiliivr  "ii/iN 
as  iiicnliimii!  I'l 
iinr  'I'rt'iUy  wii'i 

tlicirioiiiiii;:  ini" 
of  llif  for.  ;;iii;i- 
not  lii'ii  'X  iiili:''' 
with  l'i;ui<r.  liii- 

'.iili-<li  A|>ii'  'I'll- 

ml  Hull's.  ;ni\ 
'it'iil  IViwcr  111 


h  tht'  s 


f  iuttMiKi- 


till 


IS  I  it 


;|    \  iol.ltlOll  111 
lill     till'   llOti'.i; 

;  DflT'.lhiH'! 

ltd  stu-tii»ii  •''  "' 


)|"  the  Itinv 
Vl'SSl'l  wliitii. 


II  11 


,;i  s 


'niifi- 


liip  t>t 


\\;i! 


\r.. '': 


tlv 


\ii;ini(l   III"')' 
Ihi'irti)  «/ 


r.hMTISlI    Sli'lM-KMKNTAI.    AKMllMKNT 


4;{7 


liti'il  J\iii;j,(lom  or  any  ol'  llcr  Majosty's  doMiiiiioiis,  was  a  sliip  of  war. 


iiiiisi'r,  or  armed  \ cssi-l  in  the  servic*'  of  anv  forci"!!   I'rincc,""  i^c, 


/>// 


mhliitii  fit  the  iiiimhcr  <>/  llie  i/uns  of  nurli  rr.sscl,nr  hi/  chanfi'nuj  those  on 
lidiiril  for  other  umis.  or  hi/  (he  (uUfition  of  mu/  cijuijimeiit  for  icor."' 

No  person   in  citlirr  «'i>!intry  ever  iina.uiiu'd  that,  tlicse  proliihitions 
\MHilil  l»e  inlVin^t'd  by  allow  in;;'  foreijjn  Urllijicrcnt  stcani- 


II.     lllH.T.wl 
iW  r-%  I  ,'i  ti  J  1  II 11 


Mssfls  to  coal  <iil  lihiliiin  in  ports  (»f  (Ircat  ilritain  or  of  tlir 
I'liiti'd  Slates.  It  is  no  more  trnc  tbat  sucli  M'S.scIs  arc, 
>lii'i'ially  enabled  to  continne  their  crnises  and  warlik«;  operations,  l>y 
nicaiis  of  snpplies  of  coid  so  reeeivcil,  (however  ^ii'cat  in  (piantity,)  than 
iliiU  siiilin;;-ships  of  war  are  enabled  to  continue  theii'crni.ses  and  warlike 
ii|ii'rations  by  substantial  and  extensive  rei»airs  in  neutral  ports  to  their 
liiills.  masts,  sails,  and  ri;4';;ini«',  when  dama.Ljed  or«lisabIed,  or  by  unlim- 
•nl  supplies  of  water  and  otlu'r  lu'eessary  jirovisions  for  their  cn'ws. 
It  was  not  by  (Ireat  Uritain  only,  but  etpially  by  l-'rance,  Uia/.il,  a..d 
iillicr  countries,  that  this  view  as  to  supplies  of  coal  to  Coidcderatc 
wsscis  in  neutral  jiorts  was  acted  upon  throu;;hout  the  war.  In  tlu* 
litter  already  quoted  of  the  i!ra/.ilian  Minister,  SerM)r  Taques,  to  Mr. 
Wi'lih,  on  the  subject  »  i  'he  Sumter,  (ilth  J)eceinber,  18(}1,)  he  wrctte  : 

Tlif  liitspitalit  V,  tli 


■\tri   Iril  III  till'  sti-iiiniT  SiiiiiUM-  ilt  Miiiniiliaiii, ii5  the  tcriiir 


III 


uhirli  it  was  iiirsi'ii(l\  alti'i  w  :inls  ;;ivcii  to  tlir  lVi;;att'  I'ltwiialaii.  iiivulvcs  no  iric;;!!- 
Iiiity,  reveals  no  ilis|Misit ions  olVensive  to  tlic  I'nited  >(ales,  Jt  remains  to  l;no\v 
.iliitluT.  in  tile  e.\ereise  ol'llii     iiosiiitalily,  the  ri;;lits  wijeii  lestrict  the  eomnieree  ol 


■  iitials  \v 


illrsl 


ill! 


•ither    l> 


imi-reiit    were   t  ra'isjrres.sei 


1.     Tliis  1 


oint    illVolveH    (lie   wliole 


tiiin,  l»eeaiis«' Mr.  W  I'tili  lia.ses  liis  arj;iinientatioii  and  lii.s  eoiiiplaint.s  on  tlie  eoii- 
■iiiirtioii  whieli  lie  };l\('s  of  eoiitraliaiHl  of  war  as  lo  )Mt-eoal.  He.  in.sists  stroiijily,  as 
<iiil  his  ('oiiHiil,  at  Mai'anliani,  ami  Coininotlore  Porter  on  the.  idea  tliat  without  eoal 
ilii' Siiiiiler  ecnild  not  have  eontiniied  her  i  riiise.  It'  t'.is  were  a  reason  for  iorl)iddiii;^ 
:lif  jiiireliase  of  eoil  in  the  niarUet,  the  .States  cal'ed  t'onfederate  would  have  the 
i.:;lit  til  make  the  same  eomphiint  a;iainst  the  lilie  permission  i)reseiitly  afterwards 
:ivrii  til  the  I'owhatan  :  ami  it'  this  reason  eoiild  I  e  l»ronjj,ht  forward  in  respect  ot 
';il.  it  eoiild  also  lie  nij;ed  in  lespeet  of  diinkinj;-waler  and  iirovisions,  l)eeaii-^o  with- 


out tl 


lese  none  o 


ftl 


lese  vessels  einili 


1' 


their  service.     (Itiilish  A]>pi;n<ri\,  V( 


And  he  proceeded  lo  show  that  coal  was  uot,  Jure  ffenHum,  i^outvahdud 


111  Wiir. 

When,  therctbre,  the  second  Ivide  of  the  Trcjity  of  Wiishinj;toii  speaks 
Ilia  neutral  (lovernment  bciii;;'  bound  "not  to  permit  or  ,,(.  i„,..„„.,„  „, 
-iillcr  either  belli;;erent  to  make  u.se  of  its  jnu'ts  or  waters  ll';.  r',''..',!!"'  ''n''ii'.'' 
LNtlie  base  of  naval  operations  a^iainst  the  other,  or  for  the  ''""' 
imiiinse  (»f  the  reiivinil  or  idif/  ntnitatioii  of  niUituri/  siijiplies  or  arms,  .;r 
iic  it'titiitment  (>f  men,"  it  is  no  more  inteiuleil  to  take  away  or  limit 
tlii'n.i;lit  of  ii  neutral  State  to  permit  the  coal in^jj  of  steamers  belon<>in,u 
tiillie  war  scrvic(M)f  a  bellioerent  within  neutral  waters,  than  to  take 
I'Aiiy  tlv  ri;;ht  to  jiermit  them  to  receive  provisions,  or  tiny  other  <u'di- 
iiaiy  supplies,  previously  allowable  under  the  known  rules  of  interna- 
liiMial  law. 

With  respect  to  the  regulations  made  by  tlii^  <^)iu'en  of  (Ireat  JUitain 
I'll  till'  .tlst  .lanuarv,  ISiiif.  it  is  enou^ih   to  sav,  that  those 

\X    llnh-li    r.-ii.il. 
'tri..    Ill  .l.iiHiJiir.v  III, 


jSl<».  by  .-^i'*'!''''™  it-n'.itioiis  were  vo'luntarily  made  by  Her   Majesty,  in  the 


Of  the  wai 


|)r  othi'i' 
Iny  part  i 


ai'iii''") 
>f  tl"'' 


iilltioll,)  Vii 


,  II.!' 


Iind  m''i' 
]nl•nl;n■i^■^ 
J 1 (roils  ( 
Id,"  s^  <i:'t 


t   l>-'V 


I'MTi'ise  of  her  own  undotibted   riyht  and  discretion,  as  an 
iii<l<'l>i'ii(l(>id   lUMitral  Si)verei;;ii,  and  not  by  virtue  of  any  antecedent 
iiitiTiiational  obli;;'ation  :  that  no  belli <;<' rent  Power  could  claim,  under 
iliosc  mles,  any  {j:reater  benetit   a;;'ainst  the  otluu'  belli;;erent,  than  that 
lilt'  lilies  themselves  should  be  acted  upon   without  partiality  towards 

^'itliiT  of  the  conteiKtiu''-  parties  ;  that  the  limitation  of  the  luiantitv  of 

fwi-.H'"''' ^'* '*''  ■'<ui>plied   to  the  ships  of  war  of  the  belli;4;«'rents,  in  liritisli 
Its,  by  these  rules,  was  not  absolute  and  umiUidilicd,  but  was  tsubjecl 


('.'ii'iij 


» 


}v  : 


4:;s 


SI  ITLKMKNTAKV    AI{(JI MKNT.S    AND    STATKMKNTS. 


to  tlic  t'xi'iciso  of  a  powor  j;iv«Mi  to  tlit?  Executiv*'  Authorities  of  tin 
various  JJritisli  i)o.ss(;ssioiis  to  onlarge  that  limit  by  special  ])erini.ssioii. 
when  they  shoiihl,  iii  the  exercise  of  a  bona  jUlv  discretion,  see  cause  tu 
<lo  so ;  and  that  these  rules  were,  in  fact,  honestly  and  impartially  actid 
upon  i)y  the  British  (Jovernnient  throu^liout  the  war,  without  any  con 
iiivan«H»  or  sanction  whatever,  with  or  to  any  violation  or  evasion  di 
them,  even  if  such  violation  or  evasion  could  have  been  shown  (wliidi 
it  clearly  could  not)  to  be  the  <lirect  or  proximate  cause  of  any  bellijjci 
ent  opeialion.  resnltiufj  in  loss  to  tlie  (lovernment  or  citizens  of  tin 
T'nited  States. 


rrivi'THij   \\ 


•PkMNCIIM.ES    of    roXSTRUCTION 
KII.KS   i)V   THE    IRKATV. 


AI'I'IJC'AIU.K    TO  ill! 


1  hf  wrnii^'.  «ni!   ihi 

ITilHilite^  i^i  f  (I  II 
-t rtirtmii  iii>idii*:ibl 
In  tlif  ihm'ltul.-. 


1.  Itult-  Inr 
tiit'Tprf  t  »  t  m 
|iiiI>Ih-  ruiiM'iif 
;uiit  tn'iilH'^, 


The  two  questions  last  considered  (that  of  tlu^  supi)osed  obli<;ati()iiiM 

,.  i„„„.rtaM I  Great  Hritain,  under  the  First  IJule,  to  sei/.e  or  detain  siuh 

vessels  as  the  Alabama  or  the  Florida,  when  they  cauu'iiitii 
]>ritish  ports  as  duly  commissioned  public  ships  of  wanii 
the  Confederate  States,  and  as  to  her  supposed  obli<;atiiiii. 
under  the  Second  Rule,  eitln'V  not  to  jtermit  at  all,  or  by  an  cxiid 
su|»ervision  to  limit,  tlu^  coaling  of  Confederate  steam-vessels  of  \v;ii 
in  British  ports)  involve  ]ioints  of  such  j;iave  importance  as  to  the])iiii 
ciples  of  constnu'tion  to  be  a[tplied  to  those  l{ules  lor  the  iMirposc  ni 
the  i)resent  controversy,  that  some  further  };eneral  observations  on  tliiii 
subject  seem  to  be  imperatively  called  for. 

Amonj;  the  rules  for  the  interpretation  of  Treaties,  laid  down  l»,v  \";i! 

„.  tel,  (Articles  L'(il-'-.')l(),)  are  f(uin<l  the  foll»>win;:: 

1.1 

(1.)  Siiu'c  tin-  liiwfiil  iiit<'r]ir('tatii>ii  ol'  a  t.n  >  ict  i)ii;;lit  In  l.iiii 
only  t(»  tlu!  ilis<'ovcrv  of  llic  tlioiif;lits  nf  the  iuit>:<u'or  autliors  cf  flm; 
coiitrart,  as  sdoii  iis  wc  inccl  with  any  oliMMii'ity  we  shonld  sci'k  for  wb;tt  was  \\v»\y.\- 
My  ill  (Ih-  tlioMjrlils  (((  tliosc  wiio  tlii'w  it  up  and  intcrprt'i  it  acfonlinyly.  Tiiis  is  tlh' 
;rcn>Tal  nilc  of  nil  iiitcrprfiMlions.  It  iiarticiil.irly  serves  to  lix  the  ncnsi-  <»!'  icriiiin 
t'xpri'ssions  tlir  si^iiilic:itioii  of  wliidi  is  not  snllicifiitly  ilfti-rniiiicd.  In  virtiii' ()ttlii> 
rule  Wf  should  t;d\i'  tiiosf  cxprfssions  in  the  most  fvtrnsive  scnsf.  \\ht'n  i*  is  i»r()l);iliir 
that.  ht>  \\  ho  sjiraUs  has  h;id  in  his  vii-w  csciylhinj;  pointed  out  in  this  extiii>i\r 
sense;  ;nid.  on  the  eiinliaiy,  we  on;;ht  to  eonliiiethe  si^iniliciilion,  if  it  ii|iiie;iis  ih:ii 
the  author  liiis  hnnniled  his  thoii,i;hts  l»y  what  is  eoniprehi'iided  in  t he  more  liiiiitnl 
sense.     (Alt.  -JTH. ) 

{'i.)  In  the  interprelatioM  of  treaties.  jia(ts,  and  inoinises,  \vt- onj;ht  not  to  deviut. 
from  the  eoniinoii  use  of  the  lan^iiiajie  :  at  least  if  we  liaxe  not  very  stnnm'  rcMsoiis  I"; 
it.  In  all  liMiniin  ;ill';iii's,  where  there  is  a  wfint  of  cortainty.  we  on^lit  to  follow  piulM 
Jdlity.  It  is  e<niimonly  very  prohaMe  lliiit  they  have  sp(d<en  aeeordinn  to  ciistniii: 
this  always  forms  a  very  stron;*'  i)resnniption.  whieh  eannot  he  snrmonnted  hut  liy 
eonlrary  |n'esnmplion  th;it  is  still  stronger.     (Art.  •■l'i\.) 

(I!.  I  \\'()ids  ;iie  only  designed  to  express  the  thon;;hls  :   I  has  the  true  si  ^01  licit  inn  >■. 
an  expression  in  eonimnu  use  is  the  iden   whieh   eiislom  h;is  allixed  to  tli:»t  expii>>iii 
It    is.  then.  A   i^ross  iiuihlde  to  ;ilhx  II  jiarlienlar  sense  to  a  word  in  order   to  elndc  tli 
I  rile  sense  id'  the  entire  expression. 

(1.)  When  we  niallifestly  see  wllilt  is  the  sense  tlnil  ii;;rees  with  the  intent  imMittll' 
Contraeliii};-  I'oweis  it  is  not  iierniitted  to  Inrn  their  words  |o  m  eonliiiiy  iiMMiiiii;!. 
The  intention,  siillieieiilly  known,  furnishes  the  tine  matter  of  the  Conveiilinii.  I'l 
what  is  iiereeived  and  aeee)ite<l.  demanded  and  ffianted.  To  vi(diite  the  Tre;ity  i-  t'' 
^o  contrary  to  the  iiitenti<ni.  sndieieiitly  m.inifested.  rather  than  .■ly.ainst  the  liim 
which  it  is  conceived;  lorthe  terms  are  nothinj;'  without  tln^  intention  that  oiiuln  ; 
dictiite  them.     (Art.  'J?  I.) 

(o.)  We  oiijihl  always  to  uiv4'  to  expressions  llie  sense  most  snitahle  to  the  siili;i'ii 
or  to  tho  matter  to  wliiidi  the\'  relnte.  {''or  w  <■  endeiivor,  hy  a  line  interpi'«'t;itiiMi,  I" 
iliscover  the  tlionjihts  of  those  who  speiik  or  ot'  t  lie  Contract  in;;  Towers  in  a  Tii'ii'^ 
Now.  it  on^rli)  to  1)0  ]>resnined  that  he  who  hns  employed  n  word  captihle  of  iiiiiny  il  i 
fen-iit  si^rnitications  has  taken  il  in  Iliiit  which  ;i;irees  with  the  siihject.  In  pn'!""' 
tion  !is  he  employs  himself  on  the  mallei  in  (|iiestion  the  terms  proper  to  cxpni-s  in* 
fhon;;lits  present  themsehesto  his  mind,      riiis  ei|ni\ocal  word  could,  then,  eiil\  ntM 


N'r!«. 


lUilTlslI    M'lM'LEMKNTAL    AU(;LMKNT. 


439 


liorities  of  tin 
al  ])ennissi()ii, 
1,  sec  cause  tn 
partially  iictc'd 
tliout  any  eon- 
uv  evasion  oi 
shown  (wliicli 
•f  any  l)c'lli;i;t>i 
I'itizeiis  of  tin 


JAIJI.K   T(i  Tin, 

d  obli^i'ntioii  ni 
or  (U'taiii  siuli 
tlioy  camciiitM 
iliips  of  wanii 
»sod  ol)li]i;iitiiiii, 
r  by  ail  cxad 
vessels  of  Will 
i  as  to  tlu'iuiii 
The  iMuposc  ii! 
vatioiis  on  lli;ii 

I  «lo\vii  by  \  ill 
ig: 

t  on^lit  I"  k'lhl 
r  aiitliors  el'  tli;i' 
•  \vli;;t  wan  |iroli:i 
ii;;ly.  This  is  til'' 
(•  st'iisc  of  ccftaiii 
111  virfnc  (iltlii- 
t'li  i*  is  pi'oliiiliii 

III     this     I'Xtrlbilr 

it,   aitiu';ii>  ilii" 
till'  iiiiirc  liiiiiti'' 

it  not  ti)  <l<'vi;it' 

■itnuifi  rt':ts<>ii>  I " 

t(i  t'liUow  invlu 

tnliin;  to  fii>tiiiii 

iiiint('<l  but  liy  .1 

lie  si<»'iiiliiMtii>ii  I'l 
(1  I  hat  r\|in'>siii 
r.h'r   to  <'lui!i'  li 

If  iiitcntiiiii  .>t'tli' 
oiitniry  iiI'MMMi: 
lie  ('ot'ivciition,"! 
thcTrcaty  i-  '' 
aiiist  the  tiini 
on  that  oiiulii  ' 

1 1)!.'  to  the  siil'ji'ii 
iiit('riii"tatii>ii,t» 
\-.Ts  ill  a  'fri'iity 
lahh'  of  iiiiiiiy  '' 
ijcct.     In   I'l"!'"' 

|M'r  to  fXlHcTS   l!> 

il.th.'ii.oiilyiiii" 


isflt'  ill  the  sfiisf  jiioiicr  to  (!.\iti-<'ss  the  thoii^^lit  ot"  him  wlio  iiiaki's  use  o»'  it  ;    iliat  is, 
i;  the  snisf  a;^reeahle  to  the  siihjeet.     (Alt.  •i^t».) 

iCi.)  Kvery  iiiteipretatioii  tliat  h'ails  to  an  ahsmdity  oiioht  to  lie  re.jeeted  ;  or,  in 
.itiier  words.  \ve  slioiihl  not  }j;i\e  to  any  jiieee  a  sen.se  from  wliieh  follows  anytiiin<;' 
.ilismd,  hnf  inteiiuet  it  in  siieli  a  niamier  a.s  to  avoiil  alisiinlity.  As  it  eaimot  l>e  jire- 
.uiiiiil  that  any  one  desires  what,  is  alisiird,  it  (;annot  he  siqiposed  tliathe  who  speaks 
iiiis  inteiiiied  that  his  words  sjionld  lie  understood  in  a  sense  iVoiii  which  that  alisiinl- 
ity I'ollows.  Neither  is  it  allowahle  to  jU'esiime  that  he  spoits  with  a.  serious  .'let; 
idi' what  is  shameful  and  unlawful  is  not  to  lie  presiiiiied.  We  eall  ahsiird  not  only  that 
wjijcli  is  ]iliysieally  iiui»ossihle,  hut  what  is  morally  so;  that  is,  what  is.so  eoritravy  to 
;i:;lit  reason  that  it  cannot  he  attriluited  to  a  man  in  his  rijfht  senses.  *  *  * 
riic  rule  we  ha\i'  Just  nieiitioiied  is  alisolutely  ileee,•^sary,  and  ou<;lit  t<i  he  t'ollowed, 
i\i'ii  when  there  is  neither  ohseiirity  iior  anything  eiiuivcn-al  in  the  text  ot'the  law  or 
lilt'  Treaty  itself.  For  it  uiiist  he  ohserved  tiiat  tlm  uncertainty  of  the  sense  that 
Miifrjit  to  he  ji'iveii  to  a  la\T  or  a  Treaty  does  not  merely  jirooeed  from  the  ohseiirity  or 
.iiy  other  fault  ill  the  expiession.  hut  also  from  the  narrow  limits  of  the  hiimaii  mind, 
uliicli  cannot  foresee  all  cases  and  circumstances,  nor  include  all  coiise(|ueiices  of  what 
i>  appointed  or  ]iromised  ;  in  short,  from  the  imjiossihility  of  enterin;;  into  this  im- 
uiiiise  detail.  Wo  etui  only  make  laws  or  Treaties  in  a  <i;eneral  manner;  and  the  iii- 
tcipietation  onjfht  to  ajiply  them  to  iiarticiilar  cases,  eoiiformahly  to  the  intention  of 
till'  le;;islature  or  of  th(5  (."ontractiii;^  Powers.  Now.  it  caiine-t  he  jiresumed  that  in  any 
.ISC  tliey  would  lead  to  anything;  ahsiird.  When,  therefore,  theirexprcssions,  if  taken 
II  llicir  proper  and  ordinary  sense,  lead  to  it,  it  is  necessary  to  turn  them  from  that 
-iiise  just  so  far  as  is  siillicieiit  to  avoid  ahsurdity.     (Art.  2f"-i.) 

(T. )  If  he  who  has  expiessed  himself  in  an  ohseure  or  e(|iiivocal  mauner  has  spoken 
lUcwhi're  moi'e  dearly  on  the  s;iuic  suhject,  he  is  the  hest  interpreter  of  himself. 
\Vf  (iii;ilit  to  interpret  his  ohsciiie  or  va;;ue  exi»ressioiis  in  such  a  luanner  that  they 
i.i.iy  aurci-  with  those  terms  that  are  clear  and  without  amhi;;uity  which  he  has  used 
iMwhere,  either  in  the  saiiK^  Treaty  or  in  sonu^  otlii'r  of  the  like  kind.  In  :  let,  while 
ui'liiive  no  proof  that  a  iiiaii  has  chanjicd  his  mind  or  manner  of  thinkiii<;,  it  is  jire- 
-iiiiied  that  his  thoii;;lits  have  lieeii  the  same  on  the  same  occasions  ;  so  that  if  he  has 
;iii\ where  i-leailv  shown  his  intention  with  respect  to  anything,  we  oiinht  to  ji'wr  the 
siiiic  sense  to  what  he  has  elsewhere  said  oliseiirely  on  the  same  all'air.     (.Vrt. 'J-l.) 

(".»  Fre(|ueiitly,  in  oi'der  to  ahrid^e.  jieople  exjiress  imperfectly,  and  with  .some  oh- 
seiirity. what  they  suppose  is  siiriicieiitly  elucidated  hy  the  thiu^^s  which  ])reeeded  it, 
'iit;\('ii  what  tli«y  iiropo.se  to  e\|>laiii  afterward  ;  and  hesides,  the  expressions  havi;  a 
loice,  and  sometimes  even  an  eiii  iiely  dilVereiit  sij;iiilicati'»ii,  a''cordin;i  to  the  occasiiui, 
ilicir  coiiiie<tion.  ami  their  relal  ion  to  other  wonls.  T!ie  coniieetion  and  train  ot'the 
iliscoiirsc  is  also  another  source  of  interpretation,  ^^'e  oiij^ht  to  consider  the  whole 
'liscdiirse  toy;ether,  in  order  perl'ectly  'o  conceive  the  sense  of  it,  and  to  yive  to  e.ich 
'XlU'i'ssion,  not  so  much  the  si;;nilicatioii  it  may  receive  in  itself,  as  that,  it  ou;;lit  to 
liavc  iVom  the  thread  and  spirit  ol' the  iliscoiirse.     (Art.  'J"*."».) 

\V.)  The  reason  ol  the  law  or  the  Treaty,  that  is,  themotive  which  led  to  the  makinjf 
iif  it.  and  the  viiMV  there  i>ro]ioseil.  is  one  of  the  must  certain  means  of  estalilishiii^;  the. 
;nie  sense;  and  lireat  attention  oii^lit  to  he  paid  it.  whenever  it  is  reipiired  to  explain 

luiliscure,  e(|iiivocal,an(l  uii<lcti'iiiiiiii'd  iioiiit.  eitlwr  of  law  or  of  a  Treat  v,  or  to  make  an 
.il>lilication  of  them  to  a  partieiil.ir  casi'.     ( .Vrt.  ".i-'i".) 

ihM  We  use  th'' restrictive  iiiteipietation  to  a\i)id  falliiij;  into  an  ahsurdity.  *  •  ♦ 
rill' same  method  ol' interpretation  takes  place,  when  a  case  is  presented,  in  which  tli<^ 
i.iw  or  Treaty,  accoiilin^'  to  the  riiior  of  the  tern  is,  leads  to  soinethiiie  unlaw  fill.  This 
'Xi'i'ptiou  must  then  he  maile;  since  nohodv  can  ]iromise  to  ordain  what  is  unlawful. 

.\rt. ',",1:5. ) 

ill.)  When  a  ease  arises,  in  which  it  would  he  too  prejudicial  to  any  one  to  take  a 

CA  or  iiioinise  aeeordiny;  to  thi^  ii;;i)i   of  the  terms,  a  restrictive  interpretation  is  also 

.I'll  iiscil ;  and  v,e  except  the  <a.se,  a;ireeahly  to  the  intention  of  the  leejslature,  or  of 
liiiii  who  made  I'.ie  jiromise.  j'or  I  lie  legislature  re(|uircs  only  what  is  just  and  eipii- 
liililc;  ,'ii;d  in  ciintracts  no  one  can  eeean-e  m  favor  of  another,  in  such  a  manner  as  to 
'"'I'vseiitially  wantinir  til  himself,  li  is  then  i>rcsi;nied.  with  rea'-on,  that  neither  the 
li'il'ilatiire.  riu'  the  Conlractii:;;'  Powers,  ha\e  intended  to  exlcmi  their  rciiulatioii  to 

'\lM>0|'ll 


1  = 


atiii 


ami  that   tliev  t liemselvi 


iild  h 


|ilcseli;ed  tllcinselvcs.      (.\rl.  "JKI.) 


•1' 


i.ct  tis  i.pply  (licsi^  principles  to  the  interpretation  oi'  the  Utiles  of  the 
I'lcsent  T caty.  The  Uritish  interpretation  of  the  latter  part  ;,  ,,,„,i,..„„„„,  „f 
'•f  the  lirs'  If'tilt',  which  makes  it  appliciible  only  to  the  i»re-  ll;;;:;^;;;;;;^^^^^ 
w'liiion  of  the  departure  from  llritisli  Jnri.sdietion  of  ve.sHels  V;:',l,l.^";;,■Jlt,'^^^^^^^^^^^ 
"ver  which  IJritish  jnrisdietion  h:nl  never  ceased  or  been  "  >"^-' 
'lispln'cd.  anil  whose  w  arlikc  ehara<'tt'r  rests  onl\  in  an  (as  y<*t)  nnex- 
'•'•uted  intention  orpnrpo.se,  is  aj;reeable  to  the  tifth,  sixth,  eighth,  ninth, 
iiiKl  tenth  of  the  foreyoino"  priin-iplcs.      The  .\  iiicrican   iiitei-pret;ition, 


fiFi 


i 


T-Jpirr- 


.ii^i 


If^ 


P*-: 


1! 


'fl*" 


r - 


140 


SUPPLK.MKNTAUV    AKUl'MEMS    AM>    sTATKMKXTS. 


ice 


lo- 


is: 


I'.t 


wliicli  would  oxteml  it  t<»  vessels  (;oiniiif(,  as  publie  ships  of  war  o!  rlw 
ConllMU'iatos,  into  British  waters,  without  any  notice  beforehand  tliar 
they  would  be  either  exelude<l  or  detained,  is  (n»p()sed  to  the  same  luiu 
eiples  in  the  most  marked  nmnner,  and  esi)eeially  it  is  opposed  to  tliux. 
numbered  (ian<l  10,  which  are,  perlnii)s,  the  most  cooeiit  and  umlenialtlc 
of  them  all. 

The  JJritish  interpretation  of  the  first  i)art  of  the  second  I'ule.  wliKb 
applies  the  ])hrase '*  b:ise  of  naval  operations"' in  the  same  sense  in 
which  it  has  always  been  used  by  the  leailinp;  authoritit's  on  inter- 
national  law,  and  i)articularly  by  those  of  (Jreat  Hrilain  and  the  rnil 
States.  {€.  //,,  by  J.ord  Stowell  and  Chancellor  Kent.)  is  in  acconl;n 
with  tlu^  second,  third,  and  seventh  of  these  prim-iples;  while  ; 
AuH'iican  interpretation,  whi(!h  would  extend  it  to  every  conibin;ii 
of  <'ireMmstan«'es  which  those  words,  in  their  nu)st  lax.  ])opular,  and  ui! 
scientilic  acceptation  could  ])ossibly  l>e  made  to  embra<'e,  ollends  ajiaii 
the  same,  ami  also  a;.^linst  the  tenth  ]>rinciple. 

The   Ibitish  inteipretation  of  the  wonls '' the  lenewal  r)r  aupnient, 
tion  of  military  supi)Iies  or  arms,"  in  the  latter  part  of  the  s«'cond  Jtnli 
Avhich  a)>plies  them  to  au}»inentations  of  the  warlike  tbrce  of  belli^itic 
vessels,  tlie  same,  or  tjiistletu  ffcncris,  with  those  which  were  forbitldi  i 
by  I'resident  Washington's  Jvules,  and  by  the  Jlritish  and  Ameriia': 
Forei^iu-Knlistment  Acts,  is  in  harmony  with  the  secortd,  third,  liliii, 
seventh,  ei<«;hth,  and  ninth  of  the  forejioiu}^'  ]>rincii>les.    The  Aiui-ricaii 
interpretation,  which  would  extend  them  to  su])plie8  of  articles,  such  a> 
coals,  whi(!h,  accordinj;  to  the  <loctrine  an<l  practice  of  asylum  and  Im» 
pitalit.N   hitherto  roco<>nized  and  acted  ui)on  by  all  civilized  natioii>, 
(notably  by  (ireat  IJritain   and  the   United   States,)  were  never  vet 
deemed  unhiwl'ul,  and  from  the  sujiply  of  which,  in  neutral  ])orts.  it 
would  be  hij^hly  ])i(>judicial  to  two  great  maritime  I'owers,  such  as  tlif 
two  Contracting;'  Parties,  to  ilebar  themselves  in  <;ase  of  their  beinu  in 
jjaged  in  war,  in  the  present  days  of  steam  imvigatiou,  otVends  a;^aiii- 
the  same  i)rin(!iples,  an«l  also  a}>aiust  that  numbered  11. 

The  force  of  these  objections  to  the  American  interpretation  of  tli< 
three  Ivules  is  j^reatly  increased  when  it  is  borne  in  niiml. 
first,  that  (rreat  liritain  a{?reed  to  their  beiiip:  retrosijccr 
ively  api)li(Hl  to  the  decision  of"  the  (juestions  between  tin 
two  countries  arisino^  out  of  the  claims  mentioiuMl  in  Article  1"  of  tlif 
Treaty,  those  beino-  the  claims  "growiu};  out  of  acts  committed  by  tlii 
several  vessels  which  had  j;iven  rise  to  the  claims  <>enerically  known  a- 
tin'  Alabama  Claims." 

Down  to  the  date  of  the  Treaty  no  claim  ha<l  <'ver  been  made  apiiiiisf 
< Ireat  llritain,  on  tiie  s[»ecilic  ground  of  supplies  of  (!oa!  to  Confederati 
vessels;  every  claim  for  ca|»tures,  of  which  any  intelli<;ibhi  notice  liail 
been  <;ive»i,  was  in  respect  of  captures  by  shij)s,  said  to  have  l»i'<i' 
equipped  and  fitted  out  in  Uritish  p«  its,  or  to  have  received  their  anna 
mOnts  by  means  directly  supplied  Irom  (Ireat  IJritain.  The  Ibiti  ' 
iiovernment.  tlu'refore,  was  warranted  in  believing,  as  it  did  be!i« 
that  the  controversy  l)etweeu  itsel."  and  the  (iovernment  of  the  liiitui 
States  was  confined  to  clainiN  oi-,>v  mj.';  out  of  acts  committed  by  sliip> 
of  this  des.ription  oi'ly;  and,  in  a^ieeini-' to  the  terms  of  the  lfiile.it 
<M)uld  not  U'  supposed  to  havo  >j.;,l  uny  claims  in  view  which  wci 
f;round*d  'ijly  Oil  supplies  of  oamI  to  Coni'eder;ite  vessels.  A  r<'tn' 
spective  eni':i<i,ement  <>i'  this  ^ori  •  mnot.  witln  ut  Ji  comph'te  departii!'' 
from  al!  the  i)rinciples  «>!  Histice,  i>e  »>nlar<>ed  by  any  uncertain  or  i 
necessary  im])lication. 

The  I'nitecl  States  h,%v  "ipressly  dcclar-d,  in  their  Case,  that  tlif> 
consider  <f//  the   Kules — of  course,  therefore,  the  second — to  be  coiin'! 


I.    Illlllli'lin  nil  till 
roilnlrtlrliiill    III     till 

ri'trill»|HTtlXl*       ll'llll: 

lit'  thi'  iit^rffiiii-iit. 


Sll 

\l'. 


Ill 


mmm 


lor  u<-Mi-r  il  ii<liiiitii»< 

oIIk'I   rii  inliii'-  II 


,J_,-,.,.(. 


JiRITISH    SITPLKMK.NTAL    AKGIMKNI'.  441 

(li'Sit  w  itli,  iiinl  not  to  ox(mmm1,  tlic!  inrvionsly  know  ii  nile.s  of    .,  ,,.,  ;,.i,„,;r...i 
iiitci'national  law.     (Jroat  llritaiii,  tlion}>li  takiii;^'  a  difVen'Mt  '^lru!^'"^Vr!!: !^-'' 
vii'W  of  the  other  liiih's,  has  also  cxin'cssly  dcclaicd,  in  her  ""'""'•■ 
(oiniter  (3ase,  that  she  too  ref^ards  the  s'o(M)ntl  Itnle  as  in  no  way  enlar;:- 
\\i<f  the  previonsly  known  jn-ohihitions  of  international  law,  on  the  snb 
jcct  to  which  it  relates.     The  ju'aetiee  of  the  I'liited  States,  hy  hahitn- 
iilly  reeeivin«>'  supplies  of  eoal  in  liritish  ]>orts  dnrin;;'  the  war,  was  in 
accordance  with  the  views  of  international  law,  ;ipplical>l(    to  tliis  sub- 
ject, which  had  Ix'en  previonsly  annonnt-ed  and  acted  upon  by  all   the 
liijrliest  political  and  Jndi(!ial  authorities  of  that  country.     Thus  it  is 
made  quite  apparent  that  the  construction  now  sonjiht  to  be  jdaced  by 
llie  United  States  upon  this  second  Rule  is  at  variance  with  tlu'  real  in 
tciition  and  nieaninj;'  «>f  both  the  ("ontractinu'  Parties;  and  therefore 
with  the  1st  ami  Ith  of  the  ]uinciples  extracted  iVotn  N'attel,  as  well  as 
with  the  others  already  specilied. 

J)Ut  further:  not  only  did  (Jreat  Ibitain  consent  to  the  retrospective 
;ii;i)lication  of  those  Ifides,  upon  the  footiu'n'  foriuerlv  ex- 

plained,  to  the  determination  of  what  she  understood  as  m- i 

"the  claims  j«eneru!ally  kmnvu  as  the  Alabama  (.'laims,"  I.'.VThV ri',r"!'K.'.T.'. 

;;T()win!n  (Mit  of  acts  committed  by  i)articular  v«'ssels  whi(;h  '•'-" 

had  historically  given  risc^  to  that  desiiiimtion,  autl  of  no 

other  kind  of  claims;  not  only  did  the  two  Contract ini;'  l*arti(vs 

10  observe  these  Jlnles  as  between  themselves  in  fnturt' :"  but  they  also 

agreed  to  "briiijithem  to  the  knowleilge  oH  other  maritime  I'owers,  and 

to  invite  them  to  ac('ede  to  them." 

They  did  not  attempt  to  make  a  <i«'neral  code  ol  all  the  rules  of  inter- 
national law  connected  with  tin-  subject:  they  were  not  careful,  and  did 
not  attempt,  to  express  tlu'  explanation  or  <|nalitications  of  any  ex|!res- 
sions  used  in  these  particular  IJuIes,  which  a  sound  acquaintance  with 
the  rules  and  usages  of  international  law  would  supply.  Kiiles  of  this 
nature.  Avliich  could  rationally  be  sujjposed  iU'o])er  to  be  proposed  for 
licneral  acec])tauce  to  all  the  maritime  Powers  of  the  civili/e«l  worhl, 
must  evidently  have  been  uieant  to  be  interpreted  in  ii  simph»  and 
reasonable  sense,  conformable  to,  and  not  largely  transcemling  the 
views  of  international  maritime  law  and  i)olicy  which  would  be  likely  to 
counneud  themselves  to  the  general  inteiests  and  intelligence  of  that 
portion  of  niankind.  They  must  have  been  meant  t«)  be  dellnitely,  can 
(lidly,  and  fairly  interi)reted;  not  to  be  strained  to  every  uiilbrese«Mi 
iiml  novel  consecpu-nce,  which  perverse  latitude  of  c(vnstructioii  might 
Im"  capable  of  de«lu«'ing  from  the  generality  of  their  i-xpressions.  Tliey 
must  have  been  understood  by  their  Iramers.  and  intcinlc<l  to  be  undei 
stood  by  otliei' States,  as  assuring  the  continuance,  and  in\ol\ing  in 
tlu'ir  true  interiwctation  the  recognition  of  all  those  principles,  rules, 
iiiid  ])ractical  distinctions,  established  by  international  law  ami  usage, 
iideparture  from  which  was  not  rcMpiired  by  the  natural  and  lU'cessary 
meaning  of  the  words  in  which  they  were  cx))ressed  :  they  cannot  lia\e 
been  meant  to  iiivohe  large  and  imjyortant  changes,  mion  subjects  not 
e.\])i'essly  mentioned  oi' adverted  to  by  mere  implict loii ;  nor  to  lay  a 
series  of  traps  and  pitfalls,  in  futnr<\  contingencies  and  cases,  for  nil  na- 
tions whi«!h  mightaccede  to  them.  <ireat  Uritain  certainly,  lor  her  own 
l»art,  agreed  to  them,  in  the  full  iH'liefthat  the  Tribunal  of  Arbitration, 
.  Iiefore  which  these  claims  would  come,  might  Ite  relied  nixui  to  reject 
every  strained  application  of  theii  phraseology,  which  could  wrest  them 
to  purposes  not  clearly  within  the  <!ontein])latioii  of  itoth  the  Contract- 
iiij;  Parties,  and  calculated  to  make  them  rather  a  danger  to  !«!  avoided 
tbaii  a  light  to  be  followed  bv  other  nations. 


1 


'  ^1 


JloiNDKLL  Palmer. 


!  uq|P|i  1 1 II 


1* 


iv.-ai((;umi:nt  of  mil  i:vai;ts,  onk  ok  tin:  ((M  nski,  uf 
thk  r.mtki)  states,  adduksselj  to  tiik  tijiiunal  of 

AltHITRATION  AT  (iENKVA,  ON  THK  .Vrif  AM)  (HH  AlJ(;i:sT 
IS?.>.  IX  KKPLV  T(l  TIIK  SI'EriAL  AKOrMKNT  (IK  THK  COIN- 
SKL  OK  IIEII  nUrrANNIC  MAJKSTV.  SKK  I'kOTOCdLS  X\|| 
AND  XVIII. 


if* 


AlKilMKNT  OK  Mil.  KVAHTS. 


At  the  Con/ncnrr  hrl'l  nit  the  'tth  diiif  o/  Ainjit.st  Mr.  I'rarts  atl^lnssnl  Ihr 

Trihumil  as/nllincs : 

111  tln'  comsr  (d  tlit^  doIiluMJititms  of  tin*  Trilmiiiil  it  lias  si't'iiu'd  <nm\ 

.,,„ ,i„  ,i„   to  tlM'  Ailtitiiitois,  ill  pursuiiiu'c  of  tin'  jn'ovisioii  of  tlio  liltli 

Article  of  tlic  Tn'Jit.v  of  Wasliiii^'toii,  to  iiiliinatr  that  on 
•  citain  spocilic  points  tliry  would  d«*sin'  a  liirtlM'i-  discussion  on  tin*  part 
uf  till'  Counsel  «>f  Her  JJiitannic  ^la.jcsty  for  the  elucidation  of  those 
ptunts  in  the  consideration  of  the  Tribunal.  Under  that  invitation  tlic 
eminent t'Oiinsel  for  the  IJritish  (loviMiiinent  has  i>resented  an  arfiuiiiciii 
which  distributes  itself,  as  it  seems  to  us,  while  dealiiij''  with  the  thii'c 
lioints  sufi'/icste*!,  over  a  very  general  examination  ol'  the  Arj;iiiiu'iit 
which  has  already  been  present«'d  on  the  i»artof  the  United  States. 

In  aviiilinj,' ourselv»'sof  the  ri^^lit,  under  the  Treaty,  of  replyiiij;' to  this 
special  iirjiument  upon  the  points  named  by  the  Tribunal,  it  has  been  ;i 
Jiiattt'r  of  some  embarrassment  to  determine  exacttly  how  far  thisdisciis 
sion  on  our  j>art  mi;;ht  i)roperly  ^o.  In  one  sense  our  deliberate!  Judj; 
ment  is  that  this  new  discussion  has  really  added  but  little  to  the  views 
or  the  Argument  which  had  already  been  presented  on  behalf  of  the 
IJritish  (iovernment,  ami  that  it  has  not  disturbed  the  i)ositions  wliicli 
hail  been  insisted  upon,  on  the  part  of  the  I'liited  States,  in  answer  to 
the  |>re\ious  (liscussions  on  the  part  of  the  Uritish  (iovj'rnment.  cnii 
laiiied  in  its  ( 'as«'.  Counter  Case,  and  Arjiumeiit. 

Ibit  to  have  treated  the  matter  in  this  way,  and  left  our  previous  Ai- 
yunu'iit  to  be  itseli"  such  an  answer  as  we  were  satislied  to  rely  upon  ii' 
the  new  «levelopments  ol  contrai\  views  that  weri'  presented  in  tlii- 
sjiecial  ar;4'uiii/'iit  of  the  llritish  (ioveiiiineiit.  wor.!;!  have  seemed  lo  ;is 
sume  loo  c<»nlid<'iitly  in  favor  of  <iiir  Aij;ument,  that  it  was  an  a(hM|iiiilt' 
response  in  ilsell,  and  wouhl  have  been  not  alto;;»'tlier  respe(!tliil  to  t!ii' 
\ery  abb',  Ni'i'N  comprcheiisiN c,  and  \er\  tboroiiyh  criticism  upon  tlif 
main  pointsof  that  Argument,  which  tlieeminciit  Counsel  of  Jler  Majcst) 
has  uow  pit'sented.  SVvertheh'NM  it  seems  (piite  foreifiii  from  our  duty, 
ami  «(iiite  unnecessary  foi-  an\  ;;ieat  servi<'e  lo  the  Tribunal,  to  pursue 
in  detail  c\ cry  point  and  su;;j;('stioii,  howexcr  pertinent  and  howcNcr 
skillfullv  applied,  that  is  raised  in  this  new  ar}>uinent  of  the  eiijiiunl 
Coun>»l.  \N'e  shall  ciideiivoi.  thcn'ttae,  to  present  such  views  as  seem 
to  us  useful  ami  \aluable,  and  asttiid  in  their  {••eiieral  bearing'  to  dispose 
ol'  the  dillicultics  and  counter  propositions  opposed  to  our  views  in  iIm' 
learned  ('onnsel's  present  criticism  upon  them. 


MR.    EVARTS     SI'lTLKMICNTAL    ARfJIMENT. 


443 


(liliK'iit 


Tilt'  Aniericiiii  Ai-^jfiuiu'iit,  pn'siMiU**!  on  tli(^  l."»th  of  .liun',  ok  lu'ariiij;' 
upon  tlicKo  tliroe  points  now  nndcr  discnssion,  Iia<l  distributod  the  sub- 
ject undor  tlie  {^oni'ial  licads  of  the  measure  of  international  duties  ;  of 
tlie  means  whieh  (Ireat  Ilritain  possesse<l  for  tlie  performance  of  those 
(hities  ;  of  tlu' true  seope  and  meanin«j  of  the  jdiiase  "  due  dilijjenee," 
;is  used  in  the  Treaty;  of  the  partieuhir  application  of  th<'  duties  of  the 
Treaty  to  the  ease  of  cruisers  on  their  subse<iuent  visits  to  Uritish  ]»ort8; 
and  then  of  the  taults,  or  faihires,  or  shortcomings  of  (Ireat  Hritain  in 
its  actual  condu<*t  of  the  transa<*tions  under  review,  in  reference  to  tliese 
measures  of  duty,  ami  this  exaction  of  due  dili<i;ence. 

The  special  toi)i(!  now  raised  for  discussion  in  the  matter  of  "  due 
(lili;;ence"  generally  considered,  has  Ik-cu  rejiarded  by  tlni 
Counsel  of  the  IJritish  (Jovernment  as  involvinf;a  considera- 
tion, not  only  of  the  measure  of  diliyeni'e  required  lor  the  discharge 
tif  ascertained  duties,  but  also  the  <liscussion  of  what  the  measure  of 
tliosc  duties  was;  and  then  of  lluu'xaction  of  due  diligtMice  as  applicable 
t(»  the  dill'erent  instances  «)r  occasions  for  the  <lischarge  of  that  duty, 
which  tlie  actual  transa<'tions  in  controversy  between  the  i)arties 
disclosed.  That  treatment  ijf  the  points  is,  of  course,  suitable  enough, 
if.  in  the  judgment  of  the  learned  Counsel,  necessary  for  properly  meet- 
ing the  <|uestion  si)ecilically  under  consideration,  because  all  thos<^  ele- 
ments do  i»ear  upon  the  question  of  "'due  diligence''  as  relative  to  th<> 
time,  and  place,  ami  circumstances  that  <'alled  for  its  exercise.  Never- 
tlieless,  the  general  <iuestion,  thus  largely  construe*!,  is  really  equivalent 
to  the  main  controversy  submit i«'d  to  the  dispt»sitiou  of  tins  Tribunal 
l»y  theTieaty,  to  wit,  wlnither  the  re(|uire<l  due  diligence  has  been  ap 
plied  in  the  actiml  comluct  of  atlairs  by  (Ireat  T.ritain  to  the  dilVerent 
situations  for  and  in  which  it  was  I'xacted. 

The  reach  ami  ettbrt  of  this  special  argunu'iit  in  behalf  of  the  Uritish 
(iovernment  seem  to  us  to  aim  at  tlu^  reduction  of  the  tluties  incum- 
bent on  (Ireat  Jiritaiu,  the  re<luction  of  the  ol»Mgation  to  i»erform  those 
tlnties,  in  its  source  an<l  in  its  authority,  and  to  the  calling  back  of  the 
fiuise  to  the  iK)sition  assume<l  ami  insistc<l  upon  in  the  previous  Argu- 
ment in  behalf  of  the  llritish  (Iovernment,  that  tliis  was  a  matter  not  of 
iiitcrnati(mal  duty,  and  not  of  international  obligation,  and  not  to  be 
jiidgetl  of  in  the  court  <it' ualions  as  a  «luty  due  by  one  nation,  (Ireat 
itritain,  to  an<>tiier  nation,  the  I'nited  States,  but  oidy  as  a  question  of 
its  duty  to  itself,  in  the  mainteminee  of  its  neutrality,  and  to  its  own  laws 
and  its  own  peoph',  in  everting  the,  means  placed  at  the  service  of  the 
•  invernment  by  the  KoreignlOnlistmeii!  Act  for  controlling  any  clforts 
;i;:;ainst  the  pea<  e  and  dignity  oltiie  nation. 

We  had  supposed,  and  have  so  in  our  .'vrgnnient  insisted,  that  all  that 
lung  debate  was  concluded  by  what  had   been   settled   by 
ilt'tniitive  conv<'ntion  between  the  two  nations  as  the  law  of  t'"! 
tliis  Tiii>umd,  npcm  which   the  eon«lnct  and  duty  of  (Jreat 
Ihitain,  ami  the  claims  and  rights  of  the  I'nited  Slates,  were  t(»  l>e  ad- 
JiKlged,  ami  had  lu'cn  distinctly  expressed,  and  aiit  lioiitatively  and  linally 
established  in  the  Three  Ifnles  nl  the  Treat  v. 


nil-  it..i.- 


ti'ii.i't     tti   ili.pir  iM>- 
Ih'j  itiil'.-.  exiiru'iiril. 


licfore  umlertaking  to  meet  tlie  mor(i  particular  inquiries  that  are  t( 
'le  disposcil  of  in  this  Argum«Mit,  it   is   proper  that,  at  the 
outset,  we  should  take  notice  of  an  attemi)t  to  dispaiage  the 
I'tlicacyof  those  liules,  the  source  ol'  their  authority,  and 
tlie  nature  of  their  obligation  ui)on  (in-at  I'.iitain.     The  lirst  five  s«'c- 
tions  of  the  special  argument  are  devoted  to  this  consideration.     It  is 
"'iiid  that  the  only  way  that  these  liides  come  to  be  important  in  i>ass- 
iiig, judgment  n[)on  the  eondu(;t  of  (ireat  iJritain,  in  the  nnitter  of  the 


f'^ 


441 


^[•I'l'LKMKNTARV    ARUIMKXTs    AM>    STATKMENTS. 


i.- 


felr. 


claims  of  the  UiiittMl  JStiitcs,  is  by  tin*  coiisoiit  <>('  Ilcr  Miijcsty  tliiit.  in 
<l(>(;iiliii;:  tlio  (|ii4'stioiis  l)ctvi>«'ii  tlu*  two  coiiiitrics  iuisiii^' out  of  tln-sf 
rhiinis,  tlir  Arhifnitors  slioiilil  iissiiinc  tluit,  diiriii;;'  tlu'  course  of  tlicsi- 
triiiisiictiiuis,  Her  Miijestv's  < Jovernineiit  liail  lUMlertiikeii  t()  Jut  upon 
the  ]>riiuti|)l('s  set  foitii  in  th(>s(>  lliih's,  aixl  in  tlieiii  atinoiineed.  Thiit 
re(|iiii'es,  it  is  said,  asa  ])iiiieipal  eoiisi(h'rat ion,  that  tlie  Tril>unal  shonM 
determine  whjit  the  law  of  nations  on  these  snhjeets  would  have  been  it 
these  Kides  had  not  been  thus  adopted.  'I'hen,  it  is  ai'u'iu'd  that,  as  tu 
the  i»ropositions  of  duty  covered  by  the  Jirnt  K'ide,  the  law  of  uatidiis 
did  not  impose  them,  and  that  the  obligation  of  <ireat  ilritain,  tlu'ii  • 
fore,  in  n-spect  to  the  performance  of  the  duties  assi};iied  in  tltof  Kidc. 
was  not  derived  from  the  law  of  nations,  was  not,  therefore,  a  diit.v 
between  it  and  the  IJnitetl  JStates,  nor  a  duty  the  bieach  of  whi<'h  callctl 
for  the  resentments  or  tlu'  ind«Mnnities  that  belon;;'  to  a  violation  of  the 
law  of  nations.  Then,  it  is  arjiiied  that  tlu-whole  duty  ami  responsi 
bility  and  (dtli^alion  in  that  re;;'ard,  on  the  ]>art  of  (ireat  liritain,  arost- 
under  the  lU'ovisions  of  its  donu'stit;  h'^^islatitu),  umh'r  the  provisions  (it 
_the  Forei^^n  I'iidistnu'ut  Act,  under  a  jjfeiieral  oblijration  by  which  ;i 
nation,  haviuf^'  assijjned  a  rule  of  <'omluct  tor  itself,  is  anuMiable  for  it> 
proper  and  e(|iial  i)erformanc(^  as  between  and  toward  the  two  bellijuc 
rents.  Then,  it  is  ar<;ued  that  this  assent  of  the  llritish  (lovernment. 
that  the  Tribunal  shall  re^riirdthat  <iov<'rnment  as  held  to  the  ])erfonii 
anee  of  the  duties  assiffiuul  in  those  IJuh's,  in  so  far  as  those  Ifules  wer<' 
not  of  antece<leut  obligation  in  the  law  of  nations,  is  not  a  i'onsent  tliiit 
(ireat  ISritain  shall  be  lu>ld  under  an  international  obli^^ation  to  ])erfonii 
the  Hnles  in  that  regard,  but  simidy  as  an  a<ireemeut  that  they  had  uii 
dertaken  to  dis<;harjj:e,  as  a  municipal  oblij^ation,  under  the  |U()visi()ii> 
of  their  l-'orei^iulCnlistnient  A(^t,  duties  which  were  ecpuvalent  in  tlicii 
construction  of  the  act  to  what  is  now  assijiued  as  an  internationnl 
duty;  ami  this  argument  thus  coiu'ludes  : 

Wlion,  tiicicforc,  ll.T  Majc-st.v'H  ({(ivt'iiiiinMit.  li\  tin-  sixth  iirticic  of  the  'I'lcaty  m 
^Va.shiii>;t<»ii,  ii;;rt't'tl  tliat  tlif  Ailiitiators  hlmiilil  assume  tliat  Iter  Majesty's  (hivci?] 
inciif  1ia<l  iiiiilertakeu  to  aet  iijioii  tli<^  |)i'iii(;i|ileN  set  I'oitli  in  tlie  Tlire*!  l{iiles,  (lli(iiii.'l< 
deeliniii^  to  assent  to  tlieiii  as  a  istateinent  of  )iiiiiciiiles  of  international  law,  wliirli 
wore,  in  i'oice  at  tin?  time  when  the  claims  arose.)  the  etleet  of  that  ar<;nment  was  mil 
to  make  it  the  duty  of  the  Arliitrutors  to  JiKlj^e  retros]»eetively  of  the  eondnct  of  Hri 
Maiesty*,s  (Jovei'nment,  aeeonliu};  to  any  false  hypotliesis  of  law  or  fact,  Imt  to  acknow  ■ 
l()(l}{«),  as  a  rule  of  jndjfment  tor  the  imrposes  of  tlie 'I'reaty,  the  umlertakiuj;  wliii  li 
the  Ih'itish  (iovernnient  hail  actually  and  repeatedly  };iven  to  tho  (iovernment  of  tli<' 
l'nit<'d  States,  to  act  ni>oii  the  construction  whicli  they  themselves  jilaced  upon  tin 
|iroliibitions  of  their  own  municipal  law,  according;  to  which  it  was  coincident  in  siili- 
stance  with  those  Rules. — (Jlrilisli  Sptrinl  Anjiimiiit,  p.  :{SSI.) 

Now,  w»>  may  very  brielly,  as  we  thiidc,  dispose  of  this  suoocstion,  and 
of  all  tho  intluences  that  it  is  appealed  to  to  exert  throuohoiit  the 
t;ourse  of  the  discussion  in  aid  of  the  views  insisted  upon  by  the  leariicd 
Counsel.  In  the  tirst  ]>lace,  it  is  not  a  correct  statement  of  the  Treaty 
to  say,  that  the  ttbliji^ation  of  these  JJidcs,  and  the  responsibility  on  tlif 
]»art  of  (Jreat  liritain  to  have  its  conduct  Judj^ed  accordiufj  to  those 
Utiles,  arise  from  the  assent  of  ller  IMaJesty  thus  expressed.  On  tlif 
contrary,  that  assent  (romes  in  oidy  sid>se(HU'ntly  to  the  authoritative 
statement  of  the  liides,  and  simply  as  a  (piali  lication  attendant  u]>(>ii  n 
reservation  on  tho  i)art  of  Jler  Majesty,  that  the  ])reviou8  declaration 
shall  Jiot  be  esteemed  as  an  assent  on  the  part  of  the  British  (hnrrn 
mcnf,  that  those  were  in  fact  tho  principles  of  the  law  of  nations  at  the 
time  th(!  transactions  occurred. 

The  sixth  article  of  the  Treaty  thus  dtitermines  the  authority  and  the 
obli«»:atioii  of  these  Rules.  1  read  from  the  very  commencement  of  the 
article:  "In  deciding:  tlu'  matters  submitted  to  the  Arbitrators  they 


MK.    KVAKTS     sll-rLKMKMAL    AK(iUMi:NT. 


445 


*..  i. 


[y  that.  Ill 
t  of  tlicsc 

«'  (>r  tiicsf 

I  act  upon 
•nl.    Tlii.t 
iial  slioiiM 
ivr  lu't'ii  if 
that,  as  tn 
of  nations 
aiii,  then •• 
tluif  Uiilr. 
ii'c,  a  duty 
liich  callcti 
tion  of  thi- 
ll r('si»()iisi. 
tain,  arose 
ovisioiis  (it 
y  \vhi«'li   ii 
able  lor  ii> 
wo  bell !};«'■ 
ivi'nnnciit, 
le  ]H'rt'oriii 
Hulcs  were 

)IIS(Mlt  thilt 

to  lu'rlorm 
icy  had  nil 
])rovisioii> 
iMit  ill  tlu'ir 
Itoniatioiiiil 

lie  'rrcaty  i>\ 
sty's  (iovri'ii- 
ilcs,  (llidimii 
I  liiw,  wliii  li 
iiciit  WiiH  not 
iiliict  <if  111  I 
t  to  iifl<in>\>- 
iilxiiijf  wliicli 
iinu'iit  of  tin- 
ceil  upon  till 
ideiit  in  suli- 

astioii,  ami 

lo-hOIlt     tlH' 

lie  loariKMl 
the  Troatv 
lility  Oil  the 
jf  to  those 
I.  Oil  tlic 
thoritative 
ant  upon  :i 
lechiratioii 
sh  (hnrrii- 
lions  at  the 

Ity  ami  thf 
leutot  tlic 
lators  they 


sliall  be  yoveriuMl  liy  the  following;  tiire»'  Kiihs.  w  hidi  are  afj^reed  upon 
l»y  the  llijih  Contract iiiju;  l'arti«!sas  Ituh-s  to  Ih*  taken  as  applicable  to 
the  case  and  by  such  principles  <>i'  Interiiational  Law  iittt  inconsistent 
therewith;"'  and  then  the  LMiles  are  stated. 

Now,  there  had  b»'»'ii  a  debate  lK'tw«'en  the  diplomatic  representatives 
of  the  two  (lovt'inir.eiits,  whether  the  «liities  i-xpresscd  in  those  liiilcs 
were  wholly  of  iiiti  ('national  obli;;ation  aiitectMlcnt  to  this  a<:reeiiieiit  of 
tlie  parties.  The  I'liited  States  had  from  the  beninniii;;  insisted  that 
they  were;  Oreat  ISritain  had  insisted  that,  in  regard  to  the  outfit  and 
e(|uipinent  of  i»n  itiioninil  ship  from  its  piuts,  there  was  only  an  oblijja- 
lioii  of  municipal  law  and  not  of  international  law;  that  itsdiity  con- 
coiicernin*;'  stub  out  tit  was  wholly  limited  to  the  exj'ciitioii  of  its  Kor- 
eij-iilOnlistiiu'iit  A(^t ;  that  the  dischar^ic  of  that  duty  ami  its  n'sp(uisi- 
hility  for  any  »lefault  therein  coiibl  not  be  claimed  by  the  I'liited  States 
iis  liiatter  of  international  law,  nor  upon  any  Jud^^'meiit  (ttherwiso  than 
of  the  j;eiieral  duty  of  a  neutral  to  e.\e(Mite  its  laws,  whatever  they 
im^^ht  be.  with  impartiality  lu'tweeii  the  belli;jf<'rents. 

To  close  (hat  debate,  and  in  advance  of  the  submission  <»!'  any  <pies- 
tion  to  this  Tribunal,  the  law  on  that  subject  was  settled  by  the  Treaty, 
and  scttle(l  in  terms  which,  so  tar  as  the  ()l>lijiation  of  tin*  law  jjoes, 
seem  to  us  to  admit  <»f  no  debate,  and  to  be  exposed  to  not  the  least 
uncertainty  or  (huibt.  I>ut  in  order  I  hat  it  miohi  not  bean  imputation 
iilioii  the  (lovernmeiit  of  (ireat  Kritaiii,  that  while  it  presently  a;(reed 
that  the  duties  of  a  neutral  were  as  these  IJiilcs  <'\pi('ss  them,  and  that 
these  liiiles  wv.n'  applicable  to  this  case,  that  a  neutral  nation  was  Itound 
to  conform  to  them,  and  that  they  should  ;:overn  this  Tribunal  in  its 
decision — in  order  that  fnmi  all  this  there  mi;;ht  n(»t  ai'is(>  an  imputation 
that  the  conduct  of  (ireat  Itritain,  at  the  tim(>  of  the  ti'aiisacti<ms,  (if  it 
slioiild  be  ibiiiid  in  thejud^nieiit  of  tliis  Tribunal  to  have  l>een  at  vari- 
anc(^  with  these  Kulcs,)  would  be,  subject  to  the  charoc  of  a  variance 
with  an  acknowledo-iiuMit  of  th«>  Rules  then  prescntl\  admitted  as  bind 
\uii,  a  reservation  was  made.     What  was  that  reservation  ' 

tier  Iti'itiiniiie  Miijesty  lias  eoniniaiKleil  Iut  lli;i'!i  ('Diiiniissiniiers  ami  I'li'iiiixiteii- 
tiaries  to  (leelace  that  iter  Majesty's  (ioM'cimieiil  eaiinot  assent  to  tin-  lorc;foiiiir  K'liles 
as  a  stateineiit  ot' |>i'iiiei|>les  ot' iiitei'iiatiiiiial  law  vvliieli  weie  in  I'uree  at  tlie  time  when 
the  elaiiiiN  iiieiitioned  iiiAcliele  I  arose,  lint  that  lleiMa.jesly's  (Hi\eriimeiit,  in  order 
to  eviiiee  its  desice  ol°  slii'iiy;tlitiiinjr  tlie  iVieiidly  lelatiinis  lielwcen  tlie  t  wo  eonnli'ieN, 
^iiiil  of  iiiakin;r  salist'aetory  |ii'o\  isioii  lor  tlie  fiitnce,  a;;rees  tlial,  in  deeidiii;;'  tlie  (|t(es- 
tioiis  Ix'tweeii  the  two  eonnlcies  arisiii<;'  out  <il'  these  rliiims.  tlif  Arlnlialois  shodhl 
iissiiiiie  tlia'  ilec  Majesty's  (Joveciimeiit  had  (oidertakeii  to  act  ii|Min  the  iniiieiplts  set 
liiilli  in  these  liides. 

Thus,  while  this  savins  clause  '•'  lespect  to  the  i)ast  conduct  of  (Ireat 
Ihitaiii  was  allowed  on  tlu^  declaratiim  of  Her  Majesty,  yet  that  tieclara- 
tion  was  atlmitted  into  the  Tretity  only  iip(Mi  the  express  )»r(»viso  that 
it  should  have  no  import  of  any  kind  in  dispaiaoino-  {|„.  (dilioation  of 
the  IJules,  their  sioniijciidce.  their  bindinji'  force,  or  the  principles  upon 
which  this  Tribunal  should  jiidoc  coiuierninj;'  them. 

Shall  it  be  said  that  when  the  whole  ollice  of  this  clause,  thus  re- 
ferred to,  is  of  that  nature  tind  extent  oiiIn  ,  and  when  it  ends  in  the  de- 
tciniinatioii  that  that  reservation  shall  have  no  v(l)vt  upon  your  tUrisiou, 
shall  it,  I  say,  be  (claimed  that  this  leservat ion  shall  have  an  effect  upon 
the  iuj;ument  .'  JIow  shall  it  be  [yretended,  before  ti  Tribunal  lik(^  this, 
that  what  is  U)  be  axsHmvil  in  the  decision  is  not  to  be  assume  I  in  the 
argtunent  ? 

Ibit  what  does  this  mean  .'  Does  it  mean  that  these  Thr.'e  Jtiiles,  in 
their  future  application  to  the  conduct  of  the  Cnitetl  States — ntiy,  in 
their  fnttire  apjtlication  to  the  condnc't  of  (Iretit  liritain,  mean  some- 
thing ditl'erent  from  what  they  mean  in  their  applicjition  to  the  past  ? 


I 


4 

't     ii'-j 

■i!  ■ 


41(> 


SI  PPLEMKNTARY  ARGUMENTS  AND  STATEMENTS. 


V 


<{    I 


m 


WliHt  lK'<M)ines,  tli(Mi,  of  the  ]mrcliJisiii;;  coiisitlrriitioii  of  tlu'sr  liiilo 
for  tlu'  future,  to  wit.  that,  waiviu}"  Ut'liatr,  tliry  sluill  hv.  applied  to  tin' 
past .' 

We  uiust,  tlierefoi'e,  insist  that,  upon  th«'  [tlaiii  deehuatioiis  of  tlii> 
Treaty,  tiu'ie  is  uothiiijn"  wiiatever  iu  this  projiositiou  of  the  llrst  Jivt- 
seetious  of  tiie  new  special  ar^junu-ut.  If  there  \v»'re  anything;  in  it.  ii 
wouhl  'fin  to  the  ruptur*',  ahiiost,  of  the  Treaty;  lor  the  hiumiaj-e  i> 
])hnn,  tiie  nuiti\e  is  dechired,  the  foree  in  future  is  n«)t  in  dispute,  iiiid. 
for  th<^  consiih'ration  of  that  toree  in  the  future,  the  sanu>  f(U'(;e  is  to  lit- 
applie<1  in  the  Jud<;nH>nt  of  tliis  Trihiinal  up<ui  tiie  past.  Now.  it  is  s;ii<| 
that  this  deehiratior.  of  tiu>  l)iudinx  autlnuity  of  these  Kuh's  is  to  leatl 
in  tin'  sense  of  lliis  v<'ry  eonipli»'at«'d,  sonu'what  unintellij;ibh',  proposj 
tion  of  tlie  l(>arned  Counsel.  ('on\pare  his  words  with  the  declaration 
of  the  l>iudin<>  authority  of  these  Itules,  as  Kules  of  International  Law. 
actually  found  in  the  Treaty,  andjutl;ie  for  yourselves  wlu'ther  tlu'  twit 
forms  of  expression  are  equivaleid  and  interchan;;eal>le. 

Can  any  one  iina;;int!  that  the  United  States  wouhl  li.tve  a<;ree«l  tliiii 
the  const  riuM  ion,  in  its  application  to  the  past,  was  to  be  of  this  niodilieti. 
uncertain,  optional  character,  while,  iu  tli'^  future,  the  Itules  were  to  be 
authoritative,  binding  Uules  of  the  law  of  uations  !  When  the  IJnitctl 
States  had  given  an  assent,  by  convention,  to  the  law  that  was  to  yov 
ern  this  Tribunal,  was  it  intended  that  that  law  sluudil  be  «*onstruiMl. 
as  to  the  ])ast,  dilferently  from  what  it  was  to  be  <'onstnu'd  in  referencf 
to  t\w  future.' 

1  apjirehend  that  this  learned  Tribunal  will  at  on(!«'  disnnss  this  con 
sideration,  with  all  its  important  intluence  uptin  the  whole  subseipn>nt. 
arguuuMit  of  the  enunent  (.'ouusel,  which  an  attentive  exanuiuilinoii  ot 
that  argument  will  disclose. 

"NVith  this  pr(>position  falls  the  fuither  proposition,  already  met  in 
our  former  Argument,  that  it  is  material  to  go  into  the  ic 
giou  of  debate  as  to  what  the  law  of  nations  upon  these 
'"""  subjects,  uow  uiuler  review,  was  or  is.     So  far  as  it  falls 

within  the  range  covered  by  these  K'ules  of  the  Treaty,  their  provisions 
have  coiichuled  the  controversy.  To  what  juirpose,  then,  i)ursue  an  in 
(piiry  and  a  course  of  argument  which,  whatever  way  in  the  balance  ol 
your  conclusions  it  may  be  determined,  cannot  alVect  your  Jiulgnient  ei 
your  award  .'  If  these  Kiiles  art!  found  to  be  «!onformed  to  the  law  el 
nations  in  the  i)rinciples  which  it  held  antecedent  to  their  adoption,  tin- 
Ivules  cannot  have  for  that  leason  any  greater  force  than  by  tlu'ir  own 
simple,  unconfirmed  authority.  If  they  dilfer  from,  if  they  exceed,  it 
they  transgress  the  requirements  of  the  law  of  nations,  as  it  stood  ante 
cedent  to  the  Treaty,  i»y  so  much  tlu'  greater  force  does  the  convention 
of  the  jiarties  recpiire  that,  for  this  trial  and  for  this  Judgment,  these 
JkUles  are  to  be  the  law  of  this  Tribunal.  This  argument  is  hinted  at 
ill  the  Counter  Case  of  the  Ibitish  (Jovernmeiit;  it  has  been  the  subject 
of  .some  public  <li.scussioii  in  the  press  of  (ireat  l>ritain.  IJut  the  most 
authoritative  expression  of  opinion  upon  this  point  from  the  press  ot 
that  country  has  not  failed  to  stigmatize  this  suggestion  as  briiiginj; 
the  obligation  of  the  ]iules  of  this  Treaty  down  to  "the  vanisliin.u 
point."' 

At  the  close  of  the  s)»ecial  argument  we  iind  a  general  presentation 

Si.  It.  p,.imr, .  of  canons  for  the  construction  of  treaties,  and  son  e  g(  ih  val 

17"IHmM^'!rrl•^.'t',''';  observations  as  to  the  light  or  the  controlling  reason  iniilei 

•""'"''•  which    these    Ivules   of  the   Treaty  should    be   cou.sti'i h1. 

These  suggestions  may  be  briefly  dismissed. 

'  Loudon  Times,  Fc1)rnaiy,  IH/'-i.  , 


H"»  riir  thf  Tril.ii 


MR.    KV.MM.S     sri'l'LK.MKMAI,     VKCilMKM. 


117 


iss  this  (.'Oil- 
sul>,s(M|n('iit, 
iiinatinoit  oi 


ll  (u'Kiiiiily  would  Im' a  very  ^'fnit  n'proarli  to  tlu'sc  nations,  wliirli 
had  «l«'lil)«'ratt'ly  tixi'd  upon  tdive  propositions  as  oxpirssivr  of  tlu'  law 
of  nations,  in  their  JntlKnn'nt.  for  tln>  purposes  of  this  trial,  that  a  resoit 
to  general  instiuetions,  for  the  purpose  of  interprelati(ni,  was  ne<'essary. 
Kh'ven  canons  ol  interpretation  diawn   Ironi  N'attel  are  presented  in 
onler,  and  then  several  of  them,  as  the  ease  suits,  ai'«^  applied  as  vain 
ahlc  in  elucidating^  this  or  that   point  of  tlM>  Kides.     Uiit  the  h'arned 
Counsel  has  onntted  to  hriu};' to  your  notice  the  lirst  and  nntst   ;;eneral 
rule  of  \att»'l,  which,  beiny  once  understood,  would,  as  we  think,  dis 
jtciise  with  any  <'onsid«'ration  of  these  suhordinate  «'anons  whi«'h  N'atti'l 
lias  introduc<>d  t(»  be  used  only  in  cas(>  his  lirst  ;;'eiH'ral  rule  does  not  ap 
ply.    This  first  proposituin  is,  that  "it  is  not  allowable  to  interpret  what 
iias  no  need  of  interpretation." 

Now  these  llulcs  of  the  Treaty  are  the  delibeiate  and  careful  expres- 
sion of  the  will  (»f  the  two  nations  in  establishin^i'  the  I, AW  for  the  ^fov- 
tTiunent  o\'  tiiis  Tribuinil.  which  the  Treaty  calls  into  existcin'c.  'I'hese 
Itiilcs  need  no  inteipretati«>n  in  any  jicncral  sj-nse.  rndoubte«lly  there 
may  l)e  phrases  wlinh  may  re<H'ive  some  illustration  or  ehu'idation  \mm 
tlio  history  and  ironi  the  princi|tles  of  the  law  of  nations;  and  to  that 
we  have  no  object  ion.  Instanc«'s  of  very  jjrojier  applicatnai  t(t  that  resent 
occur  in  the  arj;umeid  of  whi<'h  1  am  now  replying.  Hut  there  can  be 
DO  possible  need  to  resort  to  any  ficneral  rules,  su»'h  as  those  nn)st  fa- 
vored ami  insistcil  upon  by  the  h'arned  Ctmnsel,  vi/,  the  sixth  proposi- 
tion of  \'attel,that  you  never  should  accejtt  an  interpretation  that  leads 
to  an  absurddy — nv  thci  tenth,  that  you  never  should  ac(!ept  an  inter- 
liictation  that  leads  to  a  criini*.  Nor  do  we  need  to  recur  to  \'attel  for 
what  is  ('ertainly  a  most  .sensible  proposition,  that  the  leason  of  the. 
frcaty — that  is  to  say,  the  nndivu  which  led  to  tiie  nndviuf;  of  it  and 
the  object  in  contemplation  at  the  time — is  the  most  certain  clue  to  lead 
us  to  the  (liscovery  of  its  true  meainu}.;'. 

Jhit  the  iid'erence  «lrawn  from  that  juoixtsition,  in  its  ai)plicatit>n  to 
this  case,  by  the  learn»'d  (.'onnsel,  seems  veiy  wide  from  what  to  us  ap- 
pears natural  and  sensible.  The  aid  which  he  seeks  under  the  {^uidaiu'e 
of  this  rule  is  from  the  abstra<U  proposition  of  ])nblicists  on  cognat<* 
sabjects  or  the  illustrative  instances  yiven  by  le^'al  commentators. 

Our  view  of  the  matt«'r  is  that,  as  this  Treaty  is  applied  to  the  jtast, 
as  it  is  applied  to  an  actual  situatiiui  between  the  two  nations,  and  as  it 
is  applied  to  settle  the  doubts  and  disputes  which  existed  between  them 
as  to  obli<>ati(m  and  to  the  performance  of  obligations,  these  considera- 
lions  furnish  the  resort,  if  any  is  lu'cdcd.  whereby  this  Tribunal  should 
Nftt^k  to  determine  wliat  the  true  meaninj;'  of  the  lli^'h  Contracting- 
Parties  is. 

Now,  as  bearinji'  upon  all  these  three  topics,  of  (buMliliii'ence.  of  treat- 
ment of  ol1endin.ii  cruisers  in  their  subse<pu'nt  visits  to  llritish  ports,  ami 
of  their  supply,  as  from  a  base  of  operati<uis,  ^vith  the  nutans  of  con- 
timiiiij;-  the  war,  these  Rules  are  to  hv  treated  in  relerence  to  the  con- 
troversy as  it  had  arisen  and  as  it  was  in  i)ro;4ress  Itctween  the  two  ini- 
tioiis  when  the  Treaty  was  formed.  What  was  that:'  Here  was  a 
nation  i)ro.secutinj;  a  war  aj^ainst  a  portion  of  its  ]»opidation  and  terri- 
tory in  revolt.  Aj>;ainst  the  .sovereign  thus  prosecutiu};'  his  war  there 
was  raised  a  nuiritimo  warfare.  The  bellij>erent  itself,  thus  prosecutinj;- 
this  maritime  warfare  ajjainst  its  sovereij^n,  confessedly  had  no  i>orts 
and  no  waters  that  could  serve  as  the  base  of  its  naval  operations.  It 
had  no  shipyards,  it  had  no  founderies,  it  had  no  means  or  resources  by 
which  it  could  maintain  or  keep  on  foot  that  war.  A  project  and  a  pur- 
pose of  war  was  all  that  couhl  have  origin  from  within  its  territory,  and 


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the  i)ocuuiar.y  resources  by  which  it  couhl  derive  its  supply  from  mm- 
tral  nations  was  all  that  it  coiiUl  t'liriiish  toward  this  uuiritiine  war. 

Now,  that  war  having'  in  fact  been  kept  on  foot  and  having  resiiUed 
in  great  injuries  to  the  sovereign  belligerent,  gave  «»ccasiou  to  a  <i()iitio. 
versy  between  that  sovereign  and  the  neutral  nation  of  (Ireat  Britain 
as  to  whether  these  actual  supplies,  these  actual  bases  of  maritime  war 
from  and  in  neutral  Jurisdiction,  were  conformable  to  the  law  of  nations 
or  in  violation  of  its  principles.  Of  course,  tlie  mere  fact  that  this  war 
had  thus  been  kept  on  foot  did  not,  of  itself,  carry  the  neutral  respon- 
sibility. JJut  it  did  bring  into  controversy  the  opposing  [>ositi()iis  of 
the  two  nations.  Great  JJritain  contended  during  the  course  of  tlu; 
transactions,  an<l  after  their  close,  and  now  here  contends,  that,  how- 
ever much  to  be  regretted,  these  transactions  did  not  place  any  respon- 
sibility upon  the  neutral,  because  they  had  been  eliected  only  by  sneli 
ijomnuuiicatiou  of  the  resources  of  the  people  of  Great  Britain  as  umler 
international  law  was  innocent  and  protected;  that  commercial  com- 
jnunicatiou  and  the  resort  for  asylum  or  hospitality  in  the  ports  was  the 
entire  measure,  comprehension,  and  character  of  all  that  liad  occurred 
within  the  neutral  jurisdiction  of  Great  Britain.  The  United  States 
contended  to  the  contrary.  What,  then,  was  the  solution  of  the  matter 
which  settles  amicably  this  great  dispute  ?  Why,  first,  that  the  piin 
<;iples  of  the  law  of  nations  should  be  settled  by  convention,  as  tliev 
have  been,  and  that  they  should  furnish  the  guide  and  the  control  ot 
your  decision ;  second,  that  all  the  facts  of  the  transactions  as  thev 
occurred  should  be  .submitted  to  your  linal  and  satisfactory  deterinina 
tion  ;  ami,  third,  that  the  application  of  these  principles  of  law  settled 
by  (ionventiou  between  the  parties  to  these  fa(;ts  as  ascertained  by  your 
selves  should  be  made  by  yourselves,  and  should,  in  the  end,  close  the 
controversy  and  be  accepted  as  satisfactory  to  both  parties. 

In  this  view,  we  must  insist  that  there  is  no  occasion  to  go  into  any 
very  considerable  discussion  as  to  the  meaning  of  these  Kules,  unless  in 
the  very  subordinate  sense  of  the  exi)lanation  of  a  phrase,  such  as 
"  base  oi"  oi)erations,"  or  "military  supplies,"  or  "recruitment  of  men," 
or  some  similar  matter. 

I  now  ask  your  attention  to  the  part  of  the  discussion  which  rehites 

K„,,„, „, ,„j,.  to  the  effect  of  a  "comn)ission,"  which,  though  made  tlie 

subject  of  the  se(;ond  topic  luimed  by  the  tribunal,  and 
taken  in  that  order  by  the  learned  Counsel,  I  propose  first  to  consider. 

It  is  said  that  the  claims  of  the  United  States  in  this  behalf,  as  made 
in  their  ArgunuMit,  rest  ui)on  an  exaggerated  construction 
«in"CnoIX' ii,'"t  of  the  second  clause  of  the  first  Eule.  On  this  point,  I  have 
first  to  say  that  the  construction  which  we  put  upon  that 
clause  IS  not  exaggerated ;  and,  in  the  second  place,  that  these  claims 
in  regard  to  the  duty  of  (jreat  JJritain  in  respect  to  commissioned 
cruisers  that  have  had  their  origin  in  an  illegal  outfit  in  violation  of  the 
law  of  nations,  as  settled  in  the  first  llule,  do  not  rest  exclusively  upon 
the  secoml  clause  of  the  first  Kule.  They,  undoubtedly,  in  one  con 
struction  of  that  clause,  find  an  adequate  support  in  its  proposition: 
but,  if  that  construction  should  fail,  nevertheless,  the  duty  of  Great 
Britain,  in  dealing  with  these  offending  cruisers  in  their  subsequent 
resort  to  its  ports  and  waters,  would  rest  upou  principles  quite  iude 
]>endent  of  this  construction  of  the  second  clause. 

The  second  clause  of  tliat  Itule  is  this :  "  And  also  to  use  like  diligence 
to  prevent  the  departure  from  its  jurisdiction  of  any  v»\ssel  intended  to 
cruise  or  carry  on  war  as  above,  su<;h  vessel  having  been  specially 
adapted  in  whole  or  in  part  within  such  jurisdiction  to  warlike  use." 


J  * 


n 


MR.    EVARTS'   SUPPLEMENTAL   ARGUMENT. 


449 


It  is  said  that  this  second  clause  of  the  first  Rale  manifestly  applies 
only  to  the  onfjinal  departure  of  such  a  vessel  from  the  British  Juris- 
dictiou,  while  its  purposes  of  unlawful  hostility  still  remain  in  intention 
merely,  and  have  not  been  evidenced  by  execution. 

If  this  means  that  a  vessel  that  had  made  its  first  evasion  from  a 
British  port,  under  circumstances  which  did  not  inculpate  Great  Britain 
for  failing  to  arrest  her,  and  then  had  come  within  British  ports  a  sec- 
ond time,  and  the  evidence,  as  then  developed,  would  have  i-equired 
Great  Britain  to  arrest  her,  and  would  iiave  inculpated  that  nation  for 
failure  so  to  do,  is  not  within  the  operation  of  this  llule,  I  am  at  a  loss 
to  understand  upon  what  princijile  of  reason  this  pretension  rests.  If 
tlie  meaning  is  that  this  second  clause  only  applies  to  such  oii'eiuling 
vessels  while  they  remain  in  the  predicament  of  not  having  acquired 
the  protection  of  a  "  commission,"  that  pretension  is  a  begging  of  the 
question  under  consideration,  to  wit,  what  the  effect  of  a  "  commission" 
is  under  the  circumstances  proposed. 

I  do  not  understand  exactly  whether  these  two  cases  are  meant  to  be 
covered  by  this  criticism  of  the  learned  Counsel.  But  let  us  look  at  it. 
Supposing  that  the  escape  of  the  Florida  from  Liveri^ool,  in  the  first 
instance,  was  not  under  circumstances  which  made  it  an  injurious  vio- 
lation of  neutrality  for  which  Great  Britain  was  responsible  to  the 
United  States,  that  is  to  say,  that  there  was  no  such  fault,  from  inat- 
tention to  evidence,  or  from  delay  or  inefficiency  of  action,  as  made 
Great  Britain  responsible  for  her  escape  ;  and  supposing,  when  she  en- 
tered Liverpool  again,  as  the  matter  then  stood  in  the  knowledge  of  the 
(rovernraent,  the  evidence  was  clear  and  the  duty  was  clear,  if  it  were 
an  original  case;  is  it  to  be  said  that  the  duty  is  not  as  strong,  that  it 
is  not  as  clear,  and  that  a  failure  to  perform  it  is  not  as  clear  a 
case  for  inculpation  as  if  in  the  original  outset  the  same  circum- 
stances of  failure  and  of  fiuilt  had  been  apparent  ?  Certainly  the 
proposition  cannot  mean  this.  Certainly  the  conduct  of  Great  Brit- 
ain in  regard  to  the  vessel  at  Nassau,  a  British  port  into  which  she 
went  after  her  escape  from  Liverpool,  does  not  conform  to  this  sugges- 
tion. Bat  if  the  proposition  does  not  come  to  this,  then  it  comes  back 
to  the  pretension  that  the  commission  intervening  terminates  the  obli- 
i.'atioii,  defeats  the  duty,  and  exposes  the  suffering  belligerent  to  all  the 
consequences  of  this  naval  war,  illegal  in  its  origin,  illegal  in  its  char- 
;icter,  and,  on  the  part  of  the  oil'endiug  belligerent,  an  outrage  upon 
tlie  neutral  that  has  suffered  it. 

Now,  that  is  the  very  question  to  l)e  determined.  Uncpiestionably,  we 
submit  that,  while  the  first  clause  of  the  first  Rule  is,  by  its  terms,  lim- 
ited to  an  original  equipment  or  outfit  of  an  oft'euding  vessel,  tlie  sec- 
ond clause  was  intended  to  lay  down  the  obligation  of  detaining  in  port, 
mid  of  preventing  the  dei»artiue  of,  every  sucli  vessel  whenever  it  should 
come  within  British  jurisdiction.  I  omit  from  this  ])resent  statement,  of 
course,  the  element  of  the  effect  of  the  "  commission,"  that  being  the 
immediate  point  in  dispute. 

1  start  in  the  debate  of  that  question  with  this  view  of  the  scope  and 
etlicacy  of  the  Rule  itself. 

It  is  said,  however,  that  the  second  clause  of  the  first  Rule  is  to  be 
'luiilified  in  its  apparent  signification  and  api)lication  by  the  suppljnng 
11  pbrase  used  in  the  first  clause  which,  it  is  said,  must  be  communicated 
totlu^  second.  That  qualifying  phrase  is  "  any  vessel  icltich  it  has  rea- 
mahlc  (jround  to  believe  is  intended,"  &c. 

Now,  this  qualification  is  in  the  fi  st  clause,  and  it  is  not  in  the  sec- 

29  c 


■» 


,i||^-4#j 


450 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


Krt'.-ri...rih 

*'  rc.it'wniitil*' 
to  ticlifv*.-.'" 


Olid.  Of  course  this  element  of  having  "  reasouiible  gi'ouiul 
lu  to  believe  "  that  the  otfense  which  a  neutral  nation  is  re- 
<juiredto  prevent  is  about  to  be  committed,  is  an  element  of 
the  question  of  due  diUgencc  alwayH  t'liirly  to  be  considered,  always  suit- 
ably  to  be  considered  in  judging  either  of  the  conduct  of  Great  JJritaiii 
in  these  matters,  or  of  the  conduct  of  the  United  states  in  the  past,  oi 
of  the  duty  of  both  nations  in  the  future.  As  an  element  of  due  dili- 
gence,  it  finds  its  place  in  the  second  clause  of  the  first  Kule,  but  oulv 
as  an  element  of  due  diligence. 

Now,  upon  what  motive  does  this  distinction  between  the  purview  of 
the  first  clause  and  of  the  second  clause  rest  f    Why,  the  duty  in  regard 
to  these  vessels  embraced  in  the  j^r^-^  clause  applies  to  the  inchoate  ami 
progressive  enterprise  at  every  stage  of  fitting  out,  arming,  or  equip 
ping,  and  while  that  enterprise  is,  or  may  be,  in  respect  to  evideuoe  of 
its  character,  involved  in  obscurity,  ambiguity,  and  doubt.    It  is,  there- 
fore, provided  that,  in  regard  to  that  duty,  only  such  vessels  are  thus 
subjected  to  interruption  in  the  progress  of  construction  at  the  respon- 
sibility of  the  neutral  as  the  neutral  has  "  reasonable  ground  to  believe" 
are  intended  for  an  unlawful  purpose,  which  purpose  the  vessel  itself 
does  not  necessarily  disclose  either  in  regard  to  its  own  character  or  of 
its  intended  use.    13  ut,  after  the  vessel  has  reached  its  form  and  com- 
pleted  its  structure,  why,  then,  it  is  a  sufficient  limitation  of  the  obli- 
gation and  sufficient  protection  against  undue  responsibility,  that ''due 
diligence  to  prevent"  the  assigned  offense  is  alone  required.    Due  dili- 
gence to  accomplish  the  required  duty  is  all  that  is  demanded,  and  ac- 
cordingly that  distinction  is  preserved.    It  is  made  the  clear  and  abso- 
lute duty  of  a  nation  to  use  due  diligence  to  prevent  the  departure  from 
its  jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war  against 
a  power  with  which  it  is  at  j)eace,  such  vessel  having  been  s[)ecially 
adapted  in  whole  or  in  part  within  such  jurisdiction  to  warlike  use, 
That  is,  when  a  vessel  has  become  ready  to  take  the  seas,  having  its 
character  of  warlike  adaptation  thus  determined  and  thus  evidenced, 
so  ui)on  its  subsequent  ^  isit  to  tlie  neutral's  port,  as  to  such  a  vessel, 
the  duty  to  arrest  her  departure  is  limited  only  by  the 

Chief  Justice  Cockdurn.  "  What  should  joii  think,  ]\rr.  Evarts,  of 
such  a  case  as  this?  Suppose  a  vessel  had  escaped  from  Great  Jjiitaiu 
with  or  without  due  diligence  being  observed — take  the  case  of  the 
Florida  or  the  Shenandoah — take  either  case.  She  puts  into  a  port  be 
longing  to  the  British  Crown.  You  contend,  if  1  understand  your  argii 
ment,  that  she  ought  to  be  seized.  But  suppose  the  authorities  at  the 
l)ort  into  which  slie  puts  are  not  aware  of  the  circumstances  under 
which  the  vessel  originally  left  the  shores  of  Great  Britain.  Is  there  an 
obligation  to  seize  that  vessel  f ' 

Mr.  EvARTS.  That,  like  everything  else,  is  left  as  nmtter  of  fact. 

The  Chief  Justice.  "But  suppose  the  people  at  the  place  are  per 
fectly  unaware  from  whence  this  vessel " 

Mr.  EvARTS.  I  understand  the  question.  We  are  not  calling  in  judg- 
ment the  authorities  at  this  or  that  place.  AN'e  are  calling  into  judg 
ment  the  British  nation,  and  if  the  ignorance  and  want  of  knowledge 
in  the  subordinate  officials  at  such  a  port  can  be  brought  to  the  fault  of 
the  Homo  Government  in  not  advising  or  keeping  them  informed,  that 
is  exactly  the  condition  from  which  the  responsibility  arises.  It  is  a  ques 
tion  of  "  due  diligence,"  or  not,  of  the  nation  in  all  its  conduct  in  pro 
viding,  or  not  ])rovidi ug,  for  the  situation,  and  in  preparing,  or  not  pre 
paring,  its  officials  to  act  upon  suitable  knowledge. 

We  Qud  nothing  of  any  limitation  of  this  second  clause  of  the  first 


^rWF'TiS 


MR.    EVARTS     .SFPFLEMENTAL    ARGUMENT. 


451 


Rule  that  prevents  our  considering  its  projtcr  application  to  the  case  of 
a  vessel  which,  for  the  purpose  of  the  present  arjj^ument,  it  must  be  con- 
ceded ought  to  he  arrested  under  it,  aiul  detained  in  port  if  the  "  com- 
mission" does  not  interposo  an  obstacle. 

We  have  laid  down  at  ])ages  from  152  to  154  in  our  ArgMunent,  what  we 
consider  the  rules  of  law  in  regard  to  the  effect  of  the 
"commission"  of  a  sovereign  nation,  or  of  a  belligerent  not  r,-\l"^"^^h"Hi«t 
recognized  as  a  sovereign,  in  the  circumstances  involved  in 
this  inquiry.  They  are  very  simple.  I  find  nothing  in  the  argument  of 
uiy  learned  friend,  careful  and  intelligent  as  it  is,  that  disturbs  these 
rules  as  rules  of  law.  The  public  ship  of  a  nation,  received  into  the 
waters  or  ports  of  another  nation,  is,  by  the  practice  of 
nations,  as  a  concession  to  the  sovereign's  dignity,  exempt  oi'^.llrJnfnrK.'h'"'',' 
from  the  jurisdiction  of  the  courts  and  all  judicial  process  of  "'''"""'"""'""• 
the  nation  Avhose  waters  it  visits.  This  is  a  concession,  mutual,  recip- 
rocal between  nations  having  this  kind  of  intercourse,  and  resting  upon 
the  best  and  surest  principles  of  international  comity.  But  there  is  no 
concession  of  extraterritoriality  to  the  etlect  or  extent  that  the  sov- 
mign  \isited  is  predominated  over  by  the  sovereign  receiving  hospitality 
to  its  public  vessels.  The  principle  simply  is,  that  the  treatment  of  the 
vessel  rests  upon  considerations  between  the  nations  as  sovereign,  and 
ill  tbeir  political  cap.acities,  as  matter  to  be  dealt  with  directly  between 
them,  under  reciprocal  responsibility  for  ott'ense  on  either  side,  and 
iiiuler  the  duty  of  preserving  relations  of  peace  and  goodwill  if  you 
please,  but  nevertheless  to  be  controlled  by  reasons  of  state. 

Any  construction  of  the  rule  that  would  allow  the  visiting  vessel  to 
impose  its  own  sovereignty  upon  the  sovereign  visited,  would  be  to  push 
the  rule  to  an  extreme  that  would  defeat  its  purpose.  It  is  the  equality 
of  sovereigns  that  requires  that  the  process  and  the  jurisdiction  of  courts 
should  not  be  extended  to  public  vessels. 

But  all  other  qualifications  as  to  how  the  sovereign  visited  shall  deal 
with  public  vessels  rest  in  the  discretion  of  the  sovereign.  If  ott'ense 
is  committed  by  such  vessels,  or  any  duty  arises  in  respect  to  them,  he, 
athis  discretion  and  under  international  respor  sibility,  makes  it  the 
subject  of  remonstrance,  makes  it  the  subject  of  resentment,  makes  it 
the  subject  of  reprisal,  or  makes  it  the  subject  of  an  immediate  exer- 
cise of  force  if  the  circumstances  seem  to  exact  it. 

What,  then,  is  the  tenor  of  the  authorities,  in  respect  to  a  public  ves- 
sel not  of  a  sovereign,  but  of  a  l)elligerent,  who  has  not  been  recognized 
;is  a  sovereign  ?  The  courts  of  the  country,  when  the  question  arises  as 
:i judicial  one,  turn  to  the  political  authority,  and  ask  how  that  has  de- 
tmnined  the  question  of  the  public  character  of  such  vessels;  and  if 
tliat  question  (which  is  a  political  one)  has  been  determined  in  recogni- 
tion of  the  belligerency,  then-  the  vessel  of  the  belligerent  is  treated  as 
t  xempt  from  judicial  process  ami  from  the  judisdiction  of  the  courts, 
liut  that  vessel  remains  subject  to  the  control,  subject  to  the  domin- 
ion of  the  sovereign  whose  ports  it  has  visited,  and  it  remains  there 
iiiuler  the  character  of  a  limited  recognition,  and  not  in  the  public  char- 
iicter  of  a  representative  of  recognized  sovereignty. 

We  understand  the  motives  by  which  belligerency  is  recognized  while 
sovereignty  is  refused.  They  are  the  motives  of  humanity  :  they  are  the 
"lotives  of  fair  play;  they  are  the  motives  of  neutral  recognition  of  the 
jictual  features  of  the  strife  of  violence  that  is  in  ])rogress.  lUit  it  is 
i'lvain  to  recognize  belligerency  and  deny  sovereignty,  if  yoii  are  going 
'0  attract  one  by  one  all  the  traits  of  sovereignty,  in  the  relations  with 


I- 

\i   ■ 

■Hit 


« 


m 


),;■ 


! 

^^"'' 

U 


Wr. 


452 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


a  power  merely  recognized  as  belligerent  and  to  whom  sovereignty  has 
been  denied. 

Whjit  is  the  difference  of  predicament  ?  Why,  the  neutral  nation, 
when  it  hua  occasion  to  take  offense  or  exercise  its  rights 
LrSH^H^^^^^  with  reference  to  a  belligerent  vessel  not  representing  a  sov- 
°" """' "" ' '^"" "'  ereign,  finds  no  sovereign  behind  that  vessel  to  which  it  can 
appe«al,  to  which  it  can  remonstrate,  by  which  through  diplomacy,  by 
which  through  rei)risals,  by  which  in  resentments,  it  can  make  itself 
felt,  its  dominion  respected,  and  its  authority  obeyed.  It  then  deals 
with  these  belligerent  vessels  not  unjustly,  not  capriciously,  for  ii)jus 
tice  and  caprice  are  wrong  toward  whomsoever  they  are  exercised,  but, 
nevertheless,  upon  the  respo'^'sibility  that  its  dealing  must  reach  tbe 
conduct,  and  that  the  vessel  aud  its  conduct  are  the  only  existing  iiowcr 
and  force  to  which  it  can  apply  itself. 

I  apprehend  that  there  is  no  authority  from  any  book  that  disturb* 
in  the  least  this  proposition,  or  carries  the  respect  ;o belligerent  vessels 
beyond  the  exemption  from  jurisdiction  of  courts  and  judicial  process. 
The  rule  of  law  being  of  this  nature,  the  question,  then,  of  how  a  neutral 
shall  deal  with  one  of  these  cruisers  that  owes  its  existence  to  a  viola 
tion  of  its  neutral  rights,  and  then  presents  itself  for  hospitality  in  a 
port  of  the  neutral,  is  a  question  for  the  neutral  to  determine  accordinj; 
to  its  duty  to  itself,  in  respect  to  its  violated  neutrality  and  its  duty  to 
the  sovereign  belligerent,  who  will  lay  to  its  charge  the  consoqueiicei 
and  the  responsibility  for  this  offending  belligerent. 

Now,  I  find  in  the  propositions  of  the  eminent  Counsel  a  clear  recog: 
nitiou  of  these  principles  of  power  on  the  part  of  the  sovereign,  and  ot 
right  on  the  part  of  the  sovereign,  requiring  only  that  the  power  should 
be  exercised  suit.ibly  and  under  circumstances  which  will  prevent  it 
from  working  oppression  or  unnecessary  injury.  That  makes  it  a  fjues- 
tio'i,  therefore,  as  to  the  dealing  of  the  sovereign  for  which  the  law  of 
nations  applies  no  absolute  rule.  It  then  becomes  a  (juestion  for  the 
Tribunal  whether  (under  these  circumstances  of  cruisers  that  owe  their 
origin  or  their  power  to  commit  these  injuries  to  their  violation  of  iieu 
trality)  Great  IJritain  is  responsible  to  the  injured  sovereign,  the  United 
States,  for  this  breach  of  neutrality,  for  tliis  unlawful  birth,  for  this 
imlawful  support  of  these  offending  cruisers.  As  to  what  the  duty  of  a 
neutral  nation  is  in  these  circumstances  and  in  these  relations,  when  tlio 
offending  cruiser  is  again  placed  within  its  power,  I  find  really  no  objec- 
tion made  to  the  perem})tory  course  we  insist  upon,  except  that  aeizinjr 
such  a  vessel,  without  previous  notice,  would  be  impolite,  would  be  a  vio 
lation  ot  comity,  would  be  a  violation  of  the  decorous  practice  of  iia 
tions,  and  would  be  so  far  a  wrong. 

Well,  let  us  not  discuss  these  questions  in  the  abstract  merely  ;  let  us 
AniKMrnn  oi  t!,e  ^VV^Y  tho  luquiry  to  the  actual  conduct  of  Great  Britain  in 
pr.nnpitM.  ^jjg  .((.tual  circumstauccs  of  the  career  of  these  cruisers.    If 

Great  Britain  claimed  exemption  from  li.ability  to  the  United  States  by 
saying  that,  when  these  cruisers  had,  confessedly,  in  fact  escai)e(l  in 
violation  of  neutrality,  and  confessedly  were  on  the  seas  propagating 
those  enormous  injuries  to  the  property  and  commerce  of  a  friendly  na- 
tion, it  had  promptly  given  notice  that  no  one  of  them  should  ever  alter 
enter  its  ports,  and  that,  if  it  did  enter  its  ports,  it  woidd  be  seized  ami 
detained,  then  this  charge  that  the  conduct  of  Great  Britain  toward 
these  cruisers  in  their  subsequent  visits  to  its  ports  was  such  as  to  make 
it  responsible  for  their  original  escape  or  for  their  subsequent  career, 
would  be  met  by  this  palliation  or  this  defense.  But  no  such  case 
arises  upon  the  proofs.     You  have  then,  on  the  one  hand,  a  clear  duty 


ij       '-SI 


NTS. 


MR.    EVARTS     SUPPLEMENTAL    ARGUMENT. 


453 


avereignty  ha^^   ■  toward  the  offended  belligerent,  and  on  the  other  only  the  supposed 


leutral  nation, 
cise  its  rights 
jsenting  a  sov- 
:o  which  it  can 
diplomacy,  by 
m  make  itseit 
It  then  deals 
nsly,  for  injus- 
exercised,  but, 
must  reach  the 
existing  powe: 

k  that  disturbs 
ligerent  vessels 
udicial  process. 
f  how  a  neutral 
ence  to  a  viola 
hospitality  in  a 
mine  acconling 
and  its  duty  tu 
le  consequences 


t^ 


obligation  of  courtesy  or  comity  toward  the  cftending  belligerent.  This 
courtesy,  this  comity,  it  is  conceded,  can  l)e  terminated  at  any  time  at 
the  will  of  the  neutral  sovereign.  But  this  comity  or  this  courtesy  has 
not  been  withdrawn  by  any  notice,  or  by  any  act  of  Great  Britain  dur- 
ing the  entire  career  of  these  vessels. 

We  say  then,  in  the  first  place,  that  there  is  no  actual  situation  which 
calls  for  a  consideration  of  this  palliative  <lefense,  be(;ause  the  circum- 
stances do  not  raise  it  for  consideration.  On  the  contrary,  the  facts  as 
recorded  show  the  most  absolute  indifference,  on  the  part  of  Great 
Britain,  to  the  protracted  continuance  of  the  ravages  of  the  Alabama 
imd  of  the  Florida,  whose  escape  is  admitted  to  be  a  scandal  and  a  re- 
proach to  Great  Britain,  until  the  very  end  of  the  war. 

And,  yet,  a  subtraction  of  comity,  a  withdrawal  of  courtesx',  was  all 
that  was  necessary  to  have  determined  their  careers. 

But,  further,  let  us  look  a  little  carefully  at  this  idea  that  a  cruiser, 
illegally  at  sea  by  violation  of  the  neutrality  of  the  nation  which  has 
jriven  it  birth,  is  in  a  condition,  on  its  lirst  visit  to  the  ports  of  the 
oti'ended  neutral,  after  the  commission  of  the  offense  to  claim  the  allow- 
ance of  courtesy  or  comity.  Can  it  claim  courtesy  or  comity,  by  reason 
of  anything  that  has  proceeded  from  the  neutral  nation  to  encourage 
that  expectation  ?  On  the  contrary,  so  far  from  its  being  a  cruiser  that 
has  a  right  to  be  ui>on  the  sea,  and  to  be  a  claimant  of  hospitality,  it  is 
a  cruiser,  on  the  principles  of  international  law,  (by  reason  of  its  guilty 
origin,  and  of  the  necessary  consequences  of  this  guilt  to  be  visited  upon 
the  offended  neutral,)  for  whose  hostile  ravages  the  British  Government 
is  responsible.  What  courtesy,  then,  does  that  Government  owe  to  a 
belligerent  cruiser  that  thus  practiced  fraud  and  violence  np  its  neu- 
trality and  exposed  it  to  this  odious  responsibility  1?  Why  does  the 
offending  cruiser  need  notice  that  it  will  receive  the  treatment  appro- 
priate to  its  misconduct  and  to  the  interests  and  duty  of  the  offended 
ueutral  ?  It  is  certainly  aware  of  the  defects  of  its  origin,  of  the  in- 
jury done  to  the  neutral,  and  of  the  responsibility  entailed  ui)on  the 
neutral  for  the  injury  to  tlie  other  belligerent.  We  apprehend  that  this 
objection  of  courtesy  to  the  guilty  cruiser  that  is  set  up  as  the  only  ob- 
stacle to  the  exercise  of  an  admitted  power,  that  this  objection  which 
maintains  that  a  power  just  in  itself,  if  executed  without  notice,  thereby 
becomes  an  imposition  and  a  fraud  upon  the  offender  because  no  denial 
of  hospitality  has  been  previously  announced,  is  an  objection  which 
leaves  the  ravages  of  such  a  cruiser  entirely  at  the  responsibility  of  the 
ueutral  which  has  failed  to  intercept  it. 

It  is  said  in  the  special  argument  of  the  learned  Counsel,  that  no  au- 
thority can  be  found  for  this  exercise  of  direct  sovereignty  on  the  part 
of  an  offended  neutral  toward  a  cruiser  of  either  a  recognized  or  an 
unrecognized  sovereignty.  But  this  after  all  comes  only  to  this,  that 
such  an  exercise  of  direct  control  over  a  cruiser,  on  the  part  of  an  of- 
fended neutral,  without  notice,  is  not  according  to  the  common  course 
of  hospitality  for  public  vessels  whether  of  a  recognized  sovereign  or 
of  a  recogniz  2d  belligerent.  As  to  the  right  to  exercise  direct  authoritj"^ 
on  the  part  of  the  displeased  neutral  to  secure  itself  against  insult  or 
intiusion  on  the  part  of  a  cruiser  that  has  once  offended  its  neutrality, 
there  is  no  doubt. 

The  argument  that  this  direct  control  may  be  exercised  by  the  dis- 
pleased neutral  without  the  intervention  of  notice,  when  the  gravity 
And  nature  of  the  offense  against  neutrality  on  the  part  of  the  bellig- 
erent justify  this  measure  of  resentment  and  resistance,  needs  no  ia- 


<■»* 


i     I 


454 


SUrPLEMENTARY  AKGUMENTS  AND  STATEMENTS. 


V|iSt,- 


stance  and  no  authority  for  its  support.  In  its  nature,  it  is  a  qncstiou 
wholly  dependent  upon  circumstances. 

Our  proposition  is,  that  all  of  these  cruisers  drew  their  oriftin  out  ot 
the  violated  neutrality  of  Great  liritain,  exposing  that  nation  to  ac- 
countability to  the  United  States  for  their  hostilities.  Now,  to  say  that 
a  nation  thus  situated  is  required  by  any  principles  of  comity  to  extend 
a  notice  before  exercising  control  over  the  offenders  brought  within  its 
power,  seems  to  us  to  make  justice  and  right,  in  the  gravest  responsi. 
bilities,  yield  to  mere  ceremonial  politeness. 

To  meet,  however,  this  claim  on  our  part,  it  is  insisted,  in  this  special 
argument,  that  the  equipment  and  outfit  of  a  cruiser  in  a  neutral  port, 
if  it  goes  out  unarmed  (though  capable  of  becoming  an  instrument  ot 
offensive  or  defensive  w^ir  by  the  mere  addition  of  an  armament)  may 
bo  an  illegal  act  as  an  offense  against  municipal  law,  but  is  not  a  vio- 
lation of  neutrality  in  the  sense  of  being  a  hontile  act,  and  does  not 
place  the  offending  cruiser  in  the  position  of  having  violated  neutrality. 
That  is  but  a  recurrence  to  the  subtle  doctrine  that  the  obligations  oi 
Great  Britain  in  respect  to  the  first  liule  of  the  Treaty  are  not,  by  the 
terms  of  the  Treaty,  made  inlernational  obligations,  for  the  observance 
of  which  she  is  responsible  under  the  law  of  nations,  and  for  the  per 
missive  violation  of  which  she  is  liable,  as  having  allowed,  in  the  seuse 
of  the  law  of  nations,  a  hostile  act  to  be  perpetrated  on  her  territory. 

This  distinction  between  a  merely  illegal  act  and  a  hostile  act,  whicli 
Acts  do  :,  ^^  ^  violation  of  neutrality,  is  made  of  course,  and  depends 
laiumMi""!. MwraiTy  wholly,  upon  the  distinction  of  the  evasion  of  an  unarmed 
""' '""""""  siiip  of  war  being  jn'ohibited  only  by  municipal  law  and  not 
by  the  law  of  nations,  wliile  the  evasion  of  an  armed  ship  is  prohibited 
by  the  law  of  nations.  This  is  a  renewal  of  the  debate  between  the 
two  nations  as  to  what  the  rule  of  the  law  of  nations  in  this  respect  wa.<. 
But  this  debate  was  finally  closed  by  the  Treaty.  And,  confessedly,  on 
every  principle  of  reason,  the  moment  you  stamp  an  act  as  a  violation 
of  neutrality,  you  include  it  in  the  list  of  acts  whicli  by  the  law  of  ua- 
tiORS  are  deemed  hostile  acts.  There  is  no  act  that  the  law  of  nations 
prohibits  within  the  neutral  jurisdiction  that  is  not  in  the  nature  of  a 
hostile  act,  that  is  not  in  the  nature  of  an  act  of  war,  that  is  not  in  the 
nature  of  an  application  hij  the  offending  belligerent  of  tlit  neutral  territonj 
to  the  purposes  of  his  war  against  the  other  belligerent.  The  law  of  nations 
prohibits  it,  the  law  of  nations  punishes  it,  the  law  of  nations  exacts 
indemnity  for  it,  only  because  it  is  a  hostile  act. 

Now,  suppose  it  were  debatable  before  the  Tribunal  whether  the 
emission  of  a  war-ship  Avithout  the  addition  of  her  armament,  was  a 
violation  of  the  law  of  nations,  on  the  same  reason,  and  only  on  that 
reason,  it  would  be  debatable  whether  it  were  a  hostile  act.  If  it  were 
a  hostile  act,  it  was  a  violation  of  the  law  of  nations  ;  if  it  were  not  a 
violation  of  the  law  of  nations,  it  was  not  so,  only  because  it  was  not  a 
hostile  act.  When,  therefore,  the  Kules  of  the  Treaty  settle  that  de- 
bate in  favor  of  the  construction  claimed  by  the  United  States  in  its 
antecedent  history  and  conduct,  .and  determine  that  such  an  act  is  a 
violation  of  the  law  of  nations,  they  determine  that  it  is  a  hostile  act. 
There  is  no  escape  from  the  general  proposition  that  the  law  of  nations 
condemns  nothing  done  in  a  neutral  territory  unless  it  is  done  in  tlic 
nature  of  a  hostile  act.  And  when  you  debate  the  question  whetlier 
any  given  act  within  neutral  jurisdiction  is  or  is  not  forbidden  by  the 
law  of  nations,  you  debate  the  question  whether  it  is  a  hostile  act  or  not. 

Now,  it  is  said  that  this  outfit  without  the  addition  of  an  armament 
is  not  a  hostile  act  under  the  law  of  nations,  antecedent  to  this  Treaty. 


*i  ''0:    ■ 


;nt8. 


MR.    EVARTS'    SITI'LEMENTAL    AROl'MENT. 


45rj 


t  is  a  (luoistiou 

r  origin  out  ot 
uatioii  to  ill,'- 
)W,  to  say  that 
mity  to  oxtt'iid 
iglit  within  its 
ivest  responsi- 

iii  this  spocial 
a  neutral  port, 
I  instrument  ot 
'nianient)  may 
:  is  not  a  vio- 
and  does  not 
I  ted  neutrality, 
obligations  oi 
ire  not,  by  tbo 
;lie  observance 
md  for  the  per 
id,  in  the  sense 
her  territory, 
^tile  act,  whicli 
e,  and  depends 
of  au  unarmed 
pal  law  and  not 
p  is  prohibited 
;e  between  the 
is  respect  wa.s. 
confessedly,  on 
as  a  violation 
the  law  of  na- 
law  of  nations 
he  nature  of  a 
xt  is  not  in  the 
eutml  territortj 
law  of  nations 
lations  exacts 

|l  whether  the 

janient,  was  a 
[d  only  on  that 
let.    if  it  were 

it  were  not  a 
ie  it  was  not  a 
settle  that  tie- 
fd  States  ill  its 
;h  an  act  is  a 

a  hostile  act. 
law  of  nations 

is  done  in  the 
^stion  whether 

jidden  by  the 

itileactoruot. 

an  armament 

o  this  Treaty. 


Th'*  neutral  wlutsft 
Mfutrnlity  luift  lit-en 
\  ii>l:itcd  IS  iiiidcr  nu 
(iMiu-itinn  *)i'  i-uniity 
111  tlif  \  i(il;ttur. 


That  is  immaterial  within  the  premises  of  the  controversy  before  this 
Tribunal. 

It  is  a  hostile  act  against  Great  Britain,  which  Great  Britain 

Sir  Alexander  Cockiiurn.  "  Do  1  understand  you,  Mr.  Evarts,  to 
say  that  .such  au  act  is  a  hostile  act  against  Great  Britain  ;'■' 

Mr.  Evarts.  Yes,  a  ho.stile  violation  of  the  neutrality  of  Gre.at 
Britain,  which,  if  not  repelled  with  due  diligence,  makes  Great  Britain 
responsible  for  it  as  a  hostile  act  within  its  territory  again.st  the  United 
States. 

This  argument  of  the  eminent  Counsel  concedes  that  if  an  armament 
is  added  to  a  vessel  within  the  neutral  territory  it  is  a  hostile  adt  within 
that  territory,  it  is  a  hostile  expedition  .set  forth  from  that  territory.  It 
is  therefore  a  violation  of  the  law  of  nations,  and  if  due  diligence  is 
not  used  to  prevent  it,  it  is  an  act  for  which  Great  Britain  is  respon- 
sible. If  due  diligence  to  prevent  it  be  or  be  not  used,  it  is  an  ortense 
against  the  neutral  nation  by  the  belligerent  which  has  consummated  the 
act. 

A  neutral  luition,  against  the  rights  of  which  such  an  act  has  been 
committed,  to  wit,  the  illegally  fitting  out  a  war-ship  with- 
out armament,  (condemned  by  the  law  of  nations  as  settled 
by  this  Treaty,)  is  under  no  obligation  whatever  of  courtesy 
or  comity  to  that  cruiser.  If,  under  such  circumstaiices. 
Great  Britain  prefers  courtesy  and  comity  to  the  ott'ending  cruiser  and 
its  sponsors,  rather  than  justice  and  duty  to  the  United  States,  she 
does  it  upon  motives  which  satisfy  her  to  continue  her  responsibility 
for  that  cruiser  rather  than  terminate  it.  Great  Britain  has  no  author- 
ity to  exercise  comity  and  courtesy  to  ^hese  cruisers  at  the  expense  of 
the  offended  belligerent,  the  United  States,  whatever  her  motives  may 
be.  Undoubtedly  the  authorities  conducting  the  rebellion  would  not 
have  looked  with  equal  favor  upon  Great  Britain  if  .she  had  terminated 
the  career  of  thest.  cruisers  by  seizing  them  or  excluding  them  from  her 
ports.  That  is  a  question  between  Great  Britain  and  the  belligerent 
that  has  violated  her  neutrality.  Having  the  powers,  having  tiie  right, 
the  question  of  courtesy  in  giving  notice  was  to  be  determined  at  the 
I'ost  of  Great  Britain  and  not  at  the  expense  of  the  United  States.  But 
it  ceases  to  be  a  question  of  courtesy  when  the  notice  has  not  been 
given  at  all,  and  when  the  choice  has  thus  been  made  that  these  cruis- 
ers shall  be  permitted  to  continue  their  career  unchecked. 

Now  on  this  question,  whether  the  building  of  a  vessel  of  this  kind 
without  the  addition  of  armament  is  proscribed  by  the  law 
of  nations,  and  ])roscribed  as  a  hostile  act  and  as  a  viola- 
tion of  neutral  territory,  (outside  of  the  llules  of  the  Treaty,) 
which  is  so  much  debated  in  this  special  argument,  I  ask 
attention  to  a  few  citations,  most  of  which  have  been 
already  referred  to  in  the  American  Case. 

Hautefeuille,  rts  cited  upon  page  170,  says : 

Le  fait  de  constniire  nu  batiruent  de  guerre  pour  le  conite  <Vun  hulligeraur  on  de 
rarraerdana  les  <^tats  nentres  est  nne  violation  dnterritoire.  »  *  #  #  jj 
peut  egaleraeut  rdclanier  le  d<^8arnuMneut  dn  batinieiit  illegalenient  arine  8ur  son  terri- 
toire  et  nienie  le  d<Stonir,  s'il  entre  dans  rjuelrjue  lien  souinis  a  sa  sonverainett?  jusqu'tl 
ce  qu'il  ait  dtd  ddsarme. 

Ortolan,  as  quoted  on  page  182  of  the  same  Case,  passes  upon  this 
situation,  which  we  are  now  discussing,  as  follows : 

Nous  nous  rattacherous  pour  rdsondre  en  droit  des  gens  les  difllicnlt(^s  qm  presente 
cette  nonvelle  situation,  a  nu  prineipe  universellenieiit  <^tabli,  <iui  se  fbruiufe  en  ce 
peu  do  mots  "  inviolabilitd  du  territoire  nentre."  Cet  inviolability  est  nn  droit  pour 
I'^tat  neutre,  dont  le  territoire  ne  doit  pa«  etre  atteint  par  les  faits  de  gnerre,  mala  elle 


r..i 


Author  i  1  i  en  to 
show  iliitt  the  con- 
htrui-tioti  m  neutrnt 
frritoritrrt  ul  a  Mi\]t 
inti'udfd  to  ciirry  on 
war  HBiiuHt  «  bcllii;- 
tTcrit  i-<  .orltiddt'fi  \,y 
xhf  liiwot  natl<in'*. 


I 


#   . 


IS 


45f> 


SUPPLEMENTARY    ARGUMENTS    AND   STATEMENTS. 


M    ,     «■ 


^5' 


m 


m 


w^ 


;s'i ' 


inipoHC  iUKssi  u  co  iiiAnio  dtat  nentrc  iiiio  <5troito  obligation,  cello  do  iie  pa«  permcttrc, 
colic  d'oiiiiiorlior,  activoinont  an  boHoin,  rciiii>loi  tlo  co  tcrritoiro  i)ar  uiio  «1oh  i»aili(SH  on 
au  prolit  do  I'lnio  doH  parties  bolligf^raiitos  dans  uii  but  bostilo  ii  I'aiitro  partlc. 

Aud  tlii.s  very  question,  the  distinction  between  an  armed  vessel  and  an 
unarmed  vessel,  was  met  by  Lord  Westbury,  in  observations  made  by 
him,  and  wliieh  are  (juoted  in  the  American  Case  at  page  IS.").  Ho 
said: 

There  uiis  one  rule  of  ((induct  which  undoubtedly  civili/ed  nations  had  ajjrccd  to 
observ*!,  and  it  was  that  the  territory  of  a  neutral  should  not  be  the  brso  of  uiilitarv 
operations  by  one  of  two  bellijy;ereuts  against  the  other,  lu  speaking  of  the  basu  di 
operation:^,  ho  must,  to  a  certain  degree,  differ  from  the  noble  earl,  (Earl  Russell.)  li, 
was  not  a  question  whether  armed  ships  had  actually  left  our  shores;  but  it  was  ;i 
question  whether  ships  with  a  view  to  war  had  been  built  in  our  ports  by  ono  of  two 
belligerents.  They  need  not  have  been  armed  ;  but  if  they  had  been  laid  down  and 
built  with  a  \\v\\  to  warlike  operations  by  one  of  two  belligerents,  and  this  was  Uiiow- 
iugly  permitted  to  be  done  by  a  neutral  power,  it  was  xiuquestionably  a  broach  of 
iioutraltiy. 

Chancellor  Kent,  in  a  passage  cited  by  the  learned  Counsel  with  aj) 
proval,  sj^eaking  of  the  action  of  the  United  States  as  shown  in  the 
rules  of  President  Washington's  administration,  (which  rules  are  also 
subsequently  quoted  with  approval  in  this  Argument.)  says,  (vol.  i, 
I)age  V22 :) 

The  Government  of  the  United  States  was  warranted  by  the  iaw  .md  piactico  oi' 
nations,  in  the  declaration  made  in  171);5  of  the  rules  of  neutrality,  which  were  partic 
ularly  recognized  as  necessary  to  be  observed  by  the  belligerent  ])owers  in  their  inter- 
course with  this  country.  These  rules  were  that  the  orighinl  arminfi  or  vquippbtfi  of  wv- 
»ehin  our  jiortu  by  any  of  the  poivers  at  tear,  for  miUtary  tivrvm;  icu>s  nvlauful ;  ami  no  mch 
rcsnel  ua>i  entitled  to  an  anylum  in  our  iwrts. 

Ko  vessel  thus  equipped  was  entitled  to  an  a.sylum  in  the  ports  of  tlio 
nation  whose  neutrality  had  been  violated.  The  Tribunal  will  not  fail 
to  observe  that  these  principles  were  applied  by  President  Washington 
to  cruisers  even  of  an  independent  nation,  recognized  as  a  sovereign, 
It  was  the  cruisers  of  France  that  were  under  consideration.  But  the 
propositions  of  this  special  argument,  and  the  course  actually  jmrsued 
by  Great  Britain  in  according  its  homage  to  their  flag,  placed  these  in 
snrgent  cruisers  on  a  much  higher  and  more  inviolable  position  than  it 
is  possible  to  concede  to  cruisers  of  a  recognized  sovereign.  In  truth, 
such  treatment  accorded  to  such  cruisers  all  the  irresponsibility  of  pi- 
rates, aud  all  the  sanctity  of  public  ships  of  a  recognized  sovereignty. 
It  accorded  the  irresponsibility  of  pirates,  because  they  were  exempted 
from  all  control,  and  there  was  no  Government  behind  them  to  be  made 
responsible  for  them,  to  be  resorted  to  for  their  correction  or  restraint, 
and  to  meet  the  resentments  of  the  offended  neutrals  in  the  shape  of 
non-intercourse,  of  reprisals,  or  of  war. 

The  action  of  Great  Britain,  under  this  doctrine  of  comity  and  notice, 
as  applied  to  the  cruisers  of  this  belligerency,  really  exempted  them, 
from  the  beginning  to  the  end  of  their  careers  on  the  ocean,  from  all 
responsibility  whatever.  How  long  coidd  such  conduct  toward  Great 
Britain,  in  violation  of  her  neutrality,  as  was  practiced  by  this  belliger 
ent,  how  long  could  such  violations  of  the  neutrality  of  Great  Britain 
have  been  exercised  by  belligerent  France  without  remonstrance,  and 
if  thfit  remonstrance  were  unheeded,  without  reprisals,  followed  finally 
by  war?  Why  was  not  such  recourse  taken  in  respect  to  these  cruisers, 
to  the  power  behind  them?    There  was  no  power  behind  them. 

I  ask,  also,  in  this  connection,  attention  to  1  Phillimore,  pp.  399  to  404, 
and,  especially,  to  a  passage  extracted  from  the  case  of  the  Santissima 
Trinidad,  commenting  upon  the  case  of  the  Exchange,  which  last  case 
is  cited  at  considerable  length  in  the  argument  of  the  eminent  Counsel. 


wmm 


MR     EVAKT8     SUrPLEMENTAL    AIIOUMENT. 


457 


H ;  but  it  was  w 


Kow  the  Exchaiifje  settles  nothing,  except  that  when  the  political 
authority  of  a  (roverninent  has  recojfuized  belliffereuey,  the  e.ourts  will 
not  exercise  j'lrisdictio  i  over  the  vessels  althoiijijh  soverei}j:iity  has  not 
been  conceded  as  well. 

The  only  case  in  the  history  of  our  country  in  wiiich  the  political  au- 
thority was  called  upon  to  deal  witli  a  cruiser  that  had  derived  its  ori 
gin  in  violation  of  our  neutrality  was  the  case  of  a  i)ublic  ship  of  France, 
the  Cassius,  orijyinally  Les  Juineaux.  The  legal  report  of  this  case  is 
copied  in  full  in  the  Appendix  of  the  Hritish  Case.  It  never  came  to 
any  other  determination  than  that  France,  the  recognized  Government 
of  France,  was  the  sponsor  ior  the  Cassius,  ami  it  was  on  the  respect 
shown  to  a  sovereign  as  well  as  a  i)ublic  belligerent  that  tiie  disjmsition 
of  the  case,  exempting  the  vessel  from  judicial. process,  was  made. 

Sir  llouNDELL  Palmer.    "The  vessel  was  restored." 

Mr.  EvAUTS.  ]5ut  it  was  oidy  after  her  character  as  a  war-vessel  had 
ceased. 

Sir  KouNDEi.L  Palmek.  "It  was  the  Government  of  the  United 
States,  by  its  executive  power,  that  dire(^t«d  the  sliip  to  be  restored." 

Mr.  EvARTS.  A  detailed  history  of  this  case,  legal  and  political,  will 
be  found  in  vol.  vii  of  the  American  Appendix,  pp.  18  to  2.'),  iu  Mr. 
Dana's  valuable  note. 

It  will  there  be  seen  that  the  occasion  for  our  Government  to  deter- 
mine its  political  or  executive  action  never  arose  until  after  the  deter- 
mination of  the  judicial  proceedings  and  until  after  the  vessel  had  been 
thrown  np  by  the  French  Minister,  who  abandoned  her  to  the  United 
States  Government,  nor  until  after  she  was  a  worthless  hulk. 

Sir  liouNUELL  Palmer.  "Am  I  not  right  in  saying  that  the  Presi- 
dent of  the  Executive  Governmeirt  of  the  Un-ted  States  gave  notice  to 
the  French  Minister  that  the  ship  was  at  his  disposal  T' 

Mr.  Evarts.  After  it  had  been  abandoned,  after  it  had  ceased  to  be 
a  cruiser  capable  of  hostilities,  and  after  the  opportunity  for  its  further 
hostilities  had  ceased. 

Lord  Tenteruen.    "But  the  war  still  continued.'' 

Mr.  Evarts.  But,  I  mean,  after  the  hostilities  of  that  vessel  oame 
to  an  end. 

And  permit  me  to  say  that  this  condition  of  things  between  the  United 
States  and  France,  during  the  administration  of  the  first  President 
Adams,  came  substantially  to  a  war  between  the  two  countries.^ 

'  a  passage  from  Mr.  Dana's  note,  already  referred  to,  puts  this  matter  in  a  very  clear 
light. 

As  the  Cassius  was  taken  into  judicial  custody,  within  twenty-four  hours  of  liei 
arrival,  and  remained  in  that  custody  until  after  she  had  been  disarmed  and  disman- 
tled by  the  French  Minister,  and  formally  abandoned  by  him  to  the  United  States 
(loverumeut  with  a  reclamation  for  damages,  the  political  department  of  the  United 
States  Uoverument  never  had  practically  belbre  it  the  question,  what  it  would  do  with 
an  armed  foreign  vessel  of  war  within  its  control,  which  had,  on  a  pievious  voyage, 
l)efore  it  became  a  vessel  of  war,  and  while  it  was  a  private  vessel  of  French  citizens, 
added  Avarlike  equipments  to  itself  within  our  ports,  iu  violation  of  our  statutes  for 
the  preservation  of  our  neutrality.  When  it  came  out  of  judi(Mal  custody,  it  was  a 
stripped,  deteriorated,  and  abandoned  hulk,  and  was  sold  as  such  by  public  auction. 
Tlie  only  political  .ictiou  of  our  Government  consisted  iu  this  :  It  refused  to  iutorfero 
to  take  the  vessel  from  the  custody  of  the  judiciary,  but  instructed  its  attorney  to  see 
that  the  fact  of  its  being  a  bona  fide  vessel  of  war  be  proved  and  brought  to  the  atten- 
tion of  the  court,  with  a  motion  for  its  discharge  from  arrest  on  the  ground  of  its 
exemption  as  a  public  ship,  if  it  turned  out  to  be  so.  What  course  the  Executive 
would  have  taken  as  to  the  vessel,  if  it  had  massed  out  of  judicial  custody  before  it 
was  abandoned  and  dismantled,  does  not,  of  course,  appear.  And  that  is  the  only 
luestiou  of  interest  to  international  law. —  VH  American  Appendix,  p.  23 ;  Choix  de  Pieoes, 
(tc.,  t.  ii,  p.  726. 


M 


i 

t 


45H 


HUri'LEMKNTARY    AKGUMKNTS    AND    STATEMENTS. 


■iMi 


Now,  it  is  said  that  the  application  of  this  hccoihI  clause  of  the  lirst 
n„M.pprir„i„i,iynf  liul«  of  the  Treaty,  and  this  demand  that  detention  or  «x. 
im  «'mM"R!%,l"'''n;  cluslon  sluUI  bo  exercised  in  respect  to  cruisers  on  their 
*'""''•  8ub8e<iuent  visits  to  ports,  do  not  apply  either  to  the  Georfjiii 
or  Shenandoah,  because  neither  the  (Jeorgia  nor  the  Shenandoah  received 
their  original  outfit  by  violation  of  the  territory  of  (Jreat  Britain,  not 
even  in  the  view  of  what  wouUl  be  such  a  violation  taken  by  the  United 
States.  1  understand  that  to  be  the  position.  I  will  not  discuss  tiie 
facts  of  the  Georgia  and  Shenandoah  any  more  than  of  any  other  vessel 
in  this  regard.  It  the  Shenandoah  and  Georgia,  in  the  conclusions 
that  you  shall  arrive  at  upon  the  facts  concerning  their  outfit,  shall  bo 
l)ronoun.ced  in  tlieir  original  evasion  not  to  involve  cul|)ability  on  the 
l)art  of  Great  Britain,  and  not  to  involve  violation  of  Great  Britain^ 
territory  on  the  part  of  either  of  these  cruisers 

Sir  Alexander  CocKBUUN.  ''Suppose,  Mr.  Evarts,  that  the  departure 
was  of  such  a  nature  as  not  to  involve  Great  Britain  in  any  culpability, 
for  want  of  due  diligence,  still  there  certainly  is  a  violation  of  territory.' 

Mr.  EvAiiTS.  That  is  the  point  I  was  coming  to,  and  of  that  I  enter- 
tain no  doubt. 

You  must  find  upon  the  facts  that  there  was  no  evasion  from  the  ports 
of  Great  Britain  by  either  of  those  vessels  under  circumstances  anioiuit- 
ing  to  a  violation  of  the  neutrality  of  Great  Britain  (on  the  part  of  tlio 
vessels  and  on  the  part  of  those  who  set  them  forth)  before  you  hv'm^ 
thera  into  the  situation  where  the  resentment  for  a  violation  of  neu- 
trality, which  1  have  insisted  upon,  was  not  required  to  be  exhibited. 

I  am  not,  however,  here  to  discuss  the  questions  of  fact. 

I  will  take  up  what  is  made  tiie  subject  of  the  third  chapter  of  the 
special  argument,  which  has  reference  to  coaling  and  "the  base  of  naval 
operations"  and  'military  supplies,"  as  prohibited  by  the  second  Kiilc 
of  the  Treaty. 

The  question  of  "coaling"  is  one  question  considered  simply  under 
the  law  of  hoffpitality  or  asylum  to  belligerent  vessels  in 
neutral  ports,  and  quite  another  considered,  under  given 
facts  and  circumstances,  as  an  element  in  the  prescribed 
use  of  neutral  ports  as  "ft  base  of  naval  operations.''^ 

At  the  outset  of  the  discussion  of  this  subject  it  is  said  that  the 
British  Government  dealt  fairly  and  impartially  in  this  matter  of  coaliu^ 
with  the  vessels  of  the  two  belligerents,  and  that  the  real  complaint  on 
the  part  of  the  United  States  is  of  the  neutrality  which  Great  Britain 
had  chosen  to  assume  for  such  impartial  dealing  between  the  two  bel- 
ligerents. If  that  were  our  complaint  it  is,  certainly,  out  of  place  in 
this  controversy,  for  we  are  dealing  with  the  conduct  of  Great  Britain 
in  the  situation  produced  by  the  Queen's  Proclamation,  and  there  is  here 
no  room  for  discussion  of  any  grievance  on  the  part  of  the  United 
States  from  the  public  act  of  Great  Britain  in  issuing  that  Proclama- 
tion. But  nothing  in  the  conduct  of  the  argument  on  our  part  justifies 
this  suggestion  of  the  eminent  Counsel. 

On  the  subject  of  ^^  coaling,''^  it  is  said  that  it  is  not,  of  itself,  a  supply 
of  contraband  of  war  or  of  military  aid.  Not  of  itself.  The  grounds 
and  occasions  on  which  we  complain  of  coaling,  and  the  question  of  fact, 
whether  it  has  been  fairly  dealt  out  as  between  the  belligerents,  connect 
themselves  with  the  larger  subject,  (which  is  so  fully  tl'scussed  under 
this  head  by  the  eminent  Counsel,)  a  topic  of  discussion  of 'which  coaling 
is  merely  a  branch,  that  is  to  say,  the  use  of  neutral  ports  and  waters 
for  coaling,  victualing,  repairs,  supplies  of  sails,  recruitment  of  men  for 
navigation,  et  cet.    These  may  or  may  not  be  obnoxious  to  censure  under 


The  qui'st  ion  of 
(  naliiiA  is  a  brnmh  of 
Ihe  flrcatpr  (luphtuin 
(>r  the  use  of  Hritmli 
[Kirts  ixH  basee  ot'  uii- 
t  rutionf. 


f  A. 


^  iMAy 


mwm 


MR.    KVARTS     SlI'l'LKMKNTAL    AR(il  MKNT, 


45  i> 


the  law  of  nations  according?  as  ilicy  liavo  relation  or  not  with  facts  and 
acts  wliicli,  collectively,  make  up  the  use  of  the  neutral  ports  and  waters 
;ia"the  bases  of  naval  operations"  by  belligerents.  Accordinjjly,  the 
arffunient  of  the  eminent  Counsel  does  not  stop  with  so  easy  a  (lisposi- 
tion  of  the  subject  of  coaling'*,  but  ])roceeds  to  discuss  the  whole  ques- 
tion of  base  of  operations — what  it  means,  what  it  does  not  mean,  the 
inconvenience  of  a  loose  extension  of  its  nieaniu}^ ;  the  habit  of  the 
United  States  in  dealing?  with  the  (piestion  both  in  acts  of  Government 
and  the  practice  of  its  cruisers ;  the  understanding  of  other  nations, 
jriving  tlie  instances  arisiii}?  on  the  correspondence  with  Hra/il  on  the 
,sid>ject  of  the  Sumter;  and  produces  as  a  result  of  this  in<|niry  the 
(lonclusion,  that  it  was  uot  the  intention  of  tlie  secontl  Kule  of  the 
Treaty  to  limit  the  righto/  (mylum. 

In  regard  to  the  special  treatment  of  this  subject  of  coaling  provided 
by  the  KegulatioJis  established  by  the  JJritish  Government  in  1802,  it  is 
urged  that  they  were  voluntary  ri^gulations,  that  the  essence  of  them 
was  that  they  should  be  fairly  administered  between  the  parties,  and 
that  the  rights  of  asylum  or  hospitality  in  this  regard  should  not  bo  ex- 
ceeded. Now,  tliis  brings  up  the  whole  (piestion,  the  use  of  neutral 
ports  or  waters  as  a  "base  of  naval  operation;."  which  is  proscribed  by 
the  second  Rule  of  the  Treaty . 

You  will  observe  that  while  the  lirst  Kule  ai  {dies  itself  wholly  to  the 
particular  subject  of  the  illegal  outfit  of  a  vtfm'l  which  the  neutral  had 
reasonable  ground  to  believe  was  to  bo  niployed  to  cruise,  ct  vet.,  or  to 
tlie  detention  in  port  of  a  vessel  that  w;  m  whole  or  in  part  adapted  for 
war — while  the  injunction  and  duty  of  the  first  Itu^e  are  thus  limited, 
ar,i?  ho  violation  of  it,  and  the  responsibility  (consequent  upon  such  vio- 
lation, are  restricted  to  those  narrow  subjects,  the  proscription  of  tlie 
second  Rule  is  as  extensive  as  the  general  subject,  under  the  law  of  na- 
tions, of  the  use  of  ports  and  waters  of  the  ncuitral  as  the  basis  of  naval 
operations,  or  for  the  renewal  or  augmentation  of  military  supplies,  or 
the  recruitment  of  men. 

What,  then,  is  the  doctrine  of  hospitality  or  asylum,  and  what  is  the 
(loctrine  which  prohibits  the  use  (under  cover  of  asylum,  ti„  d„,,rinp  of 
under  cover  of  hospitality,  or  otherwise)  of  neutral  ports  and  "'*'""' '  ""»"''"^'  ^ 
waters  as  bases  of  naval  operations  ?  It  all  rests  upon  the  principle 
that,  while  a  certain  uegree  of  protection  or  refuge,  and  a  certain  peace- 
ful and  innocent  aid,  under  the  stress  to  which  maritime  voyages  are 
exposed,  are  not  to  be  denied,  and  are  not  to  bo  impeached  as  unlawful, 
yet  anything  that  under  its  circumstances  and  in  its  character  is  the  use 
of  a  port  or  of  Avaters  for  naval  operations  is  proscribed  although  it 
may  take  the  guise,  much  more  if  it  be  an  abuse,  of  the  privilege  of 
asylnm  or  hospitality. 

There  is  no  ditt'erence  In  principle,  in  morality,  or  in  duty,  between, 
neutrality  ou  land  and  neutrality  at  sea.  What,  then,  are  the  familiar 
I'ules  of  neutrality  within  the  territory  of  a  neutral,  in  respect  to  land 
warfare  ? 

Whenever  stress  of  the  enemy,  or  misfortune,  or  cowardice,  or  seek- 
ing an  advantage  of  refreshment,  carries  or  drives  one  of  AnMn«y  i,  w  en 
the  belligerents  or  any  part  of  his  forces  over  the  frontier  {'"Viri'Tnd'.LTs 
into  the  neutral  territory,  what  is  the  duty  of  the  neutral?  'i"«^"»" 
It  is  to  disarm  the  forces  and  send  them  into  the  interior  till  the  war  is 
over.  There  is  to  be  no  practicing  with  t'ds  question  of  neutral  terri- 
tory. The  refugees  are  not  compelled  by  the  neutral  to  face  their 
enemy;  they  are  not  delivered  up  as  prisoners  of  war;  they  are  not 
surrendered  to  the  immediate  stress  of  war  from  which  they  sought 


mm 

'^w-'"-" 

|ii" 

|):!^' 

ji^i'- 

p-ii* 

p'"' 

H  ■ : 


•fJ  I 


460 


SUPPLEMENTARY   ARGUMENTS   AND   STATEMENTS. 


risUt  <i:"  ("((iiitticrciiil 
rfciiliiiR:*  III  I  unlr.i 
buud  ut' \v,ir. 


refuge.  But  from  the  moment  that  they  come  within  neutral  territory 
they  are  to  become  non-combatants,  and  they  are  to  end  their  relations 
to  the  war.  There  are  familiar  examples  of  this  in  the  recent  history 
of  Europe. 

What  is  the  doctrine  of  the  law  of  nations  in  regard  to  asylum,  or 
refuge,  or  hospitality,  in  reference  to  belligerents  at  sea  during  war  'i  The 
words  themselv;  s  suflBciently  indicate  it.  The  French  equivalent  ot 
^^reldche  foreve^^  equally  describes  the  only  situation  in  which  a  neutral 
recognizes  the  right  of  asylum  and  refuge ;  not  in  the  sense  of  ship- 
wreck, I  agree,  but  in  the  sense  in  which  the  circumstances  of  ordinary 
navigable  capacity  to  keep  the  seas,  for  the  purposes  of  the  voyage  and 
the  maintenance  of  the  cruise,  render  the  resort  of  a  vessel  to  a  port  or 
ports  suitable  to,  and  convenient  for,  their  navigation,  under  actual  and 
bona  fide  circumstances  requiring  refuge  and  asylum. 

There  is  another  topic  which  needs  to  be  adverted  to  before  1  ap])ly 
Timit.t on  „f  th«  the  argument.  I  mean  the  distinction  between  commercial 
dealing  in  the  uucombined  materials  of  war  and  the  eou- 
tribiition  of  such  uncombined  materials  of  war,  in  the  service 
of  a  belligerent,  in  making  up  military  and  naval  operations,  by  the  use 
of  neutral  territory  as  the  base  of  those  contributions.  What  are  really 
commercial  transactions  in  contraband  of  war  are  allowed  by  the  prac 
tice  of  the  United  States  and  of  England  equally,  and  are  not  under 
stood  to  be  proscribed,  as  Jiostile  acts,  by  the  law  of  nations,  and  it  is 
agreed  between  the  two  countries  that  the  second  llule  is  not  to  be 
extended  to  embrace,  by  any  largeness  of  construction,  mere  commercial 
transactions  in  contraband  of  war. 

Sir  Alexander  Cockburn.  "Then  I  understand  you  to  concede 
that  the  private  subject  may  deal  commerciallv  in  what  is  contraband 
of  war?" 

Mr.  EvARTS.  I  will  even  go  further  than  that  and  say  that  commercial 
dealings  or  transactions  are  not  proscribed  by  the  law  of  nations  as 
violations  of  neutral  territory,  because  they  are  in  contraband  of  war. 
Therefore  I  do  not  need  to  seek  any  aid  in  my  present  purpose  of 
exhibiting  the  transactions  under  the  second  llule  by  these  cruisers,  as 
using  (Jreat  Britain  as  the  base  for  these  naval  operations,  from  any 
construction  of  that  rule  which  would  proscribe  a  mere  commercial  deal- 
ing in  what  is  understood  to  be  contraband  of  war.  Such  is  not  the 
true  sense  of  the  article,  nor  does  the  law  of  nations  proscribe  this  com- 
mercial dealing  as  a  hostile  act.  But  whenever  the  neutral 
ports,  places,  and  markets  are  really  used  as  the  bases  of 
naval  operations,  when  tlie  circumstances  show  that  resort 
and  that  relation  and  that  direct  and  etiicient  contribution  and  that 
complicity  and  that  origin  and  authorship,  which  exhibit  the  belligerent 
himself,  drawing  military  supplies  for  the  purpose  of  his  naval  opera- 
tions from  neutral  ports,  that  is  a  use  by  a  belligerent  of  neutral  ports 
and  waters  as  a  base  of  his  naval  operations,  and  is  prohibited  by  the 
second  llule  of  the  Treaty.  Undoubtedly  the  inculpation  of  a  neutral  lor 
permitting  this  use  turns  upon  the  question  whether  due  diligence  has 
been  used  to  prevent  it. 

The  argument  upon  the  other  side  is  that  the  meaning  of  "the  base 
of  operations,"  as  it  has  been  understood  in  authorities  relied  upon  by 
both  nations,  does  not  permit  the  resort  to  such  neutral  ports  and  waters 
for  the  purpose  of  specific  hostile  acts,  but  proceeds  no  further.  The 
illustrative  instances  given  by  Lord  Stowell  or  by  Chancellor  Kent 
in  su[)port  of  the  rule  are  adduced  as  being  the  measure  of  the  rule. 
These  examples  are  of  this  nature :  A  vessel  cannot  make  an  ambush 


Use  i)f   :i    lit' n  I  rill 

port  K>  a  biisf  nrhort- 

tile    o  p'M-  I :  i  i>  n  f* : 
what  it  i-i. 


rs. 


MR.    EVARTS'    SUPPLEMENTAL   ARGUMENT. 


461 


.I'a 


ral  territory 
leir  relations 
icent  history 

;o  asylum^  or 
igwar"?  Tlie 
quivaleut  ot 
icli  a  neutral 
jnse  of  sbip- 
$  of  ordinary 
3  voyage  and 
I  to  a  port  or 
;r  actual  and 

efore  1  ai)i)ly 
u  commercial 
and  the  cou- 
in  the  service 
is,  by  the  use 
liat  are  really 
.  by  the  prac- 
re  not  under- 
ous,  and  it  is 
I  is  not  to  be 
:e  commercial 

lU  to  concede 
is  contraband 

commercial 
f  nations  as 
and  of  war. 
it  purpose  of 
',ii  cruisers,  as 
>ns,  from  any 
imercial  deal- 
is  not  the 
ibe  this  com- 
T  the  neutral 
;he  bases  of 
nr  that  resort 
ion  and  that 
le  belligerent 
naval  opera- 
leutral  ports 
ibited  by  the 
a  neutral  for 
diligence  has 

of  "the  base 
lied  upon  by 
iS  and  waters 
iirther.  The 
Qcellor  Kent 

of  the  rule. 

an  ambush 


for  itself  in  neutral  waters,  cannot  lie  at  the  mouth  of  a  neutral  river 
to  sally  out  to  seize  its  prey,  cannot  lie  within  neutral  waters  and  send 
its  boats  to  make  captures  outside  their  limits.  All  these  things  are 
proscribed.  But  they  are  given  as  instances,  not  o{  flagrant,  but  of 
incidental  and  limited  use.  They  are  the  cases  that  the  commentators 
cite  to  show  that  3ven  casual,  temporary,  and  limited  experiments  of  this 
kind  are  not  allowed,  and  that  they  are  followed  by  all  the  definite  con- 
sequences of  an  offense  to  neutrality  and  of  displeasure  to  a  neutral,  to 
wit,  the  resort  by  such  neutral  power  to  the  necessary  methods  to  punish 
and  redress  these  violations  of  neutral  territory. 

Now  let  us  see  how  we  may,  by  exami)les,  contrast  the  nsylum  or  hos- 
pitality in  matter  of  coal  or  similar  contributions  in  aid  of  navigable 
capacity,  with  the  use  of  neutral  ports  as  a  base  of  naval  operations. 

I  will  not  trespass  upon  a  discussion  of  questions  of  fiict.  Tlie  facts 
are  wholly  within  your  judgment,  and  are  not  embraced  in  ,„„,,  ,,„, ,,( „,^, 
the  present  argument.  But  take  the  coaling  of  the  Nash-  «"''^'"' 
ville.  The  Nashville  left  Charleston  under  circumstances  not  in  dispute, 
and  I  am  not  now  considering  whether, Great  Britain  is  or  is  not  respon- 
sible in  reference  to  that  ship  in  any  other  matter  than  that  of  coaling, 
which  I  will  immediately  introduce  to  your  attention. 

The  Nashville  having  a  project  of  a  voyage  from  Charleston,  her  home 
port,  to  Great  Britain,  in  the  course  of  which  she  proposed  to  make  such 
captures  as  might  be,  intended  originally  to  carry  out  Mason  and  Sli- 
dell,  but  abandoned  this  last  intention  before  sailing,  as  exposing  these 
Commissioners  to  unfavorable  hazard  from  the  blockading  squadron. 
This  was  the  project  of  her  voyage,  those  the  naval  operations  which 
bhe  proposed  to  herself.  How  did  she  prepare  within  her  own  territory, 
to  execute  that  project  of  naval  warfare  ?  {She  relied  substantially  upon 
steam,  and  in  order  to  be  sure  of  going  over  the  bar,  under  circum- 
stances which  might  give  the  best  chance  of  eluding  the  vigilance  of 
the  blockaders,  she  took  only  two  days'  supply  of  coal,  which  would  carry 
ber  to  Bermuda.  The  coal  was  exhausted  when  she  got  there;  she 
there  took  in  six  hundred  tons. 

Sir  Alexander  Cockbuen.  "I  believe,  Mr.  Evarts,  that  the  figure 
six  afterward  came  down  to  live." 

Mr.  Evarts.  For  the  purpose  of  my  present  argument,  it  is  quite 
immaterial. 

Mr.  Waite.  "  It  was  subsequently  proved  to  be  four  hundred  and 
fifty  tons."' 

Mr.  Evarts.  Very  well.  She  had  no  coal,  and  she  took  four  hundred 
and  fifty  tons  or  more  on  board  to  execute  the  naval  operation  which  she 
projected  when  she  left  Cbarleston  and  did  not  take  the  means  to  accom- 
plish, but  relied  upon  getting  them  in  a  neutrel  port  to  enable  her  to 
pursue  her  cruise.  Now,  the  doctrine  of  rvhiche  forctk,  or  of  refuge,  or 
of  asylum,  or  of  hospitality,  has  nothing  to  do  with  a  transaction  of  that 
kind.  The  vessel  comes  out  of  a  port  of  safety  at  home,  with  a  supply 
from  the  resources  of  the  belligerent  that  will  only  carry  it  to  a  neutral 
port,  to  take  in  there  the  means  of  accomplishing  its  projected  naval 
operations.  Aiid  no  system  of  relief  in  distress,  or  of  allowing  supply 
of  the  means  of  taking  the  seas  for  a  voyage  interrupted  by  the  exhaus- 
tion of  tbe  resources  originally  provided,  have  anything  to  do  with  a 
'  ase  of  this  kind.  It  was  a  deliberate  plan,  when  the  naval  operation 
\^as  meditated  and  concluded  upon,  to  use  the  neutral  port  as  a  base  of 
naval  operations,  which  plan  was  carried  out  by  the  actual  use  of  neutral 
torrito*  v  as  proposed. 

Now  we  say,  that  if  this  Tribunal,  upon  the  facts  of  that  case,  s'lall 


■'/'I '  I 


''■' 


ri| 


!■! 


:i: 


u  ', 


I' t 


ur: 


,u'- 


I 


4fi2 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


lind  that  this  neutral  port  of  Bermuda  was  planned  and  used  as  tho 
base  of  the  naval  operations,  projected  at  the  start  of  the  vessel  from 
Charleston,  that  that  is  the  use  of  a  neutral  port  as  a  base  for  naval 
operations.  On  what  principle  is  it  not  If  It  is  true  that  the  distance  of 
the  projected  naval  operation,  or  its  continuance,  makes  a  diflference  inprin- 
eiple  as  to  the  resort  to  establish  a  base  in  neutral  territory  or  to  obtain 
supplies  from  such  a  base  ?  Why,  certainly  not.  Why,  that  would  bo 
to  proscribe  the  slight  and  comparativelj'  harmless  abuses  of  neutral 
territorj-,  .and  to  permit  the  bold,  impudent,  and  permanent  application 
of  n(!Utral  territory  to  belligerent  operations.  I  will  not  delay  any 
further  upon  this  illustration. 

Let  us  take  next  the  case  of  the  Shenandoah,  separating  it  from  any 

,„„,^, „,„,„  inquiries  as  to  culpable  escape  or  evasion  from  the  original 

5,.enamioiLh.  pQ^j;  of  LivcTpool.    Thc  projcct  of  the  yhenaudoah's  voyaf,'o 

is  known.  It  was  formed  within  the  Confederate  territory.  It  was  that 
the  vessel  should  be  armed  and  supplied,  that  she  should  make  a  cir- 
cuit, passing  round  Cape  Horn  or  the  Cape  of  Good  Hope,  that  she 
should  put  herself  on  reaching  tl^e  proper  longitude  in  a  position  to  pur- 
sue her  cruise  to  the  Arctic  Ocean,  there  to  make  a  prey  of  the  whaling 
fleet  of  the  United  States.  To  break  up  these  whaling  operations  and 
destroy  the  fleet  was  planned  under  motives  and  for  advantages  whicb 
seemed  to  that  belligerent  to  justify  the  expense,  and  risk,  and  perils  of 
the  undertaking.  That  is  tlie  naval  operation,  and  all  that  was  done 
inside  the  belligerent  territory  was  to  form  the  project  of  the  naval  oper- 
ation and  to  communicate  authority  to  execute  it  to  the  oflBcers  who 
were  outside  of  that  territory. 

Now,  either  the  Shenandoah,  if  she  was  to  be  obtained,  prepared, 
armed,  furnished,  and  coaled  for  that  extensive  naval  operation,  was  to 
have  no  base  for  it  at  all,  or  it  was  to  find  a  base  for  it  in  neutral  ports. 

It  is  not  a  ifliantom  ship,  and  it  must  have  a  base.  Accordingly,  as 
matter  of  fact,  all  that  went  to  make  up  the  execution  of  that  operation 
of  maritime  war  was  derived  from  the  neutral  ports  of  Great  Britain. 
The  ship  was  thence  deliver  J  and  sallied  forth 

Sir  Alexander  Cockburn.  "  But  that  was  not  known  to  the  Gov- 
ernment." 

Mr.  EvARTS.  I  am  now  only  showing  that  this  occurred  as  matter  of 
fact.  The  question  whether  it  was  known  to  or  permitted  by  the  Gov- 
ernment of  Great  Britain,  as  the  Chief  Justice  suggests,  is  of  an  entirely 
diftereut  aspect,  involving  the  considerations  of  due  diligence  to  prevent. 

The  ship,  then,  was  furnished  from  neutral  ports  and  waters.  It 
resorted  to  Madeira  to  await  the  arrival  of  the  Laurel,  which,  by  con- 
cert and  employment  in  advance  of  the  sailing  of  the  Shenan<loah,  was 
to  take  the  armament,  munitions  of  w.ar,  oliicers,  and  a  part  of  the  crew 
to  complete  the  Shenandoah's  fitness  to  take  the  seas  as  a  ship  of  war 
to  execute  the  naval  project  on  which  she  originally  sailed,  and  which 
were  transferred  from  ship  to  ship  at  sea.  The  island  of  JNIadeira  served 
only  as  rendezvous  foi  the  two  vessels,  and  if  there  had  been  occasion, 
as  in  fact  there  was  not,  might  have  furnished  shelter  from  storms. 
Thus  made  a  fighting-ship  from  these  neutral  portfs,  as  a  base,  and 
furnished  from  the  same  base  with  the  complete  material  for  the  naval 
operation  projected,  the  Shenandoah  made  captures,  as  without  inter- 
ruption of  her  raain  project  she  might,  rounded  the  Cape  of  Good  Hope 
and  came  to  Melbourne,  another  British  port,  whence  she  was  to  take 
her  last  departure  for  her  distant  field  of  operations,  the  waters  of  the 
whaling  fleet  of  the  United  States  in  the  Arctic  Ocean. 


MR.    EVARTS'    SUPPLEMENTAL   ARGUMENT. 


463 


|-i"iJ«llP!| 


to  the  Gov- 


Sir  KouNDELL  Palmer.  "  I  did  not,  Mr.  Evarts,  outer  upon  a  treat- 
ment of  e.acli  of  tbe  vessels." 

Mr.  EvARTS.  I  am  only  showing  that  this  ship  did  use  your  ports  for 
the  purposes  of  its  operations. 

Sir  RouNDELL  Palmer.  "But,  Mr.  Evarts,  1  only  mentioned  these 
vessels." 
Mr.  Eyakts.  You  discussed  the  question  of  base  of  naval  operations. 
There  she  obtained  as  matter  of  fact  four  hundred  and  lifty  tons  of 
coal,  or  something  of  that  kind,  and  forty  men,  and  without  both  of 
these,  as  well  as  important  repairs  of  her  machinery,  she  could  not  have 
carried  out  the  naval  project  on  which  she  had  started.  The  coal  taken  at 
Melbourne  was  sent  by  ai)pointment  from  Liverpool,  and  was  there  to 
complete  her  refitment.  The  naval  operation  would  have  failed  if  the 
vessel  had  not  received  the  replenishment  of  power  and  resources  at 
Melbourne  as  a  base.  Now,  this  Shenandoah  was  able  to  sail  sixteen 
liQots  an  hour. 

Sir  Alexander  Cockburn.  "  Do  you  mean  to  say  sixteen  knots  an 
hour  !?    That  is  faster  than  any  vessel  I  have  ever  heard  of." 

Mr.  Evarts.  Well,  we  will  not  dispute  about  the  facts.  There  is  no 
doubt,  however,  that  it  is  so — she  sailed  on  one  occasion  over  three 
hundred  and  twenty  miles  in  twenty-four  hours. 
Lord  Tenterden.  "  But  that  is  not  sixteen  knots  an  hour." 
Mr.  Evarts.  I  have  not  said  that  she  had  sailed  twenty-four  con- 
secutive hours  at  the  rate  of  sixteen  knots.  But  she  could  sail  sixteen 
knots  an  hour,  and  she  could  only  steam  ten  knots  an  hour.  I  have  not 
invented  this.  Her  remarkable  qualities  are  stated  in  the  proofs.  Iler 
steam-power  was  not  necessary  to  her  navigation  or  her  speed,  however, 
except  to  provide  against  calms,  and  give,  assurance  of  constancy  (f 
progress  in  adverse  weather.  Her  great  advantage,  however,  was  in 
being  one  of  the  fastest  sailing  ships  ever  built.  The  great  importance 
of  her  having  abundance  of  coal  at  the  contemplated  scene  of  her  naval 
operations  was,  that  she  might  capture  these  poor  whalers,  who  under- 
stood those  perilous  seas,  and  if  they  could  only  get  up  steerage  way, 
would  be  able  to  elude  her. 

Sir  Alexander  Cockburn.  "What!  if  she  sailed  sixteen  knots  an 
hour!" 

Mr.  Evarts.  If  the  Chief  Justice  will  mark  the  circumstances  of  Arc- 
tic navigation,  he  will  understand  that,  by  means  of  their  knowledge  of 
the  ice  and  the  region  generally,  they  could  seek  shelter  by  interposing 
biirriers  between  themselves  and  their  pursuer.  They  did,  however, 
become  her  prey;  but  it  was  only  when  she  found  them  becalmed. 
Xow,  this  case  of  the  Shenandoah  illustrates  by  its  career,  on  a  large 
f>cale,  the  project  of  a  belligerent  in  maritime  war,  which  sets  forth  a 
vessel  and  furnishes  it  complete  for  war,  plans  its  naval  operations  and 
executes  them,  and  all  this /row  neniral  ports  and  waters  as  the  only  base^ 
nnd  as  a  suffioient  base.  Melbourne  was  the  only  port  from  which  the 
Hhenandoali  received  anything  after  its  first  supply  from  the  home  ports 
of  Great  Britain,  and  it  finally  accomplished  the  main  operation  of  its 
naval  warfare  by  means  of  the  coaling  and  other  refitment  at  Melbourne. 
Whether  it  could  rely  for  the  origin  of  its  naval  power,  and  for  the 
means  of  accomplishing  its  naval  warfare,  upon  the  use  of  neutral  ports 
and  waters,  under  the  cover  of  commercial  dealings  in  contraband  of 
war,  and  under  the  cover  of  the  ])rivilege  of  asylum,  was  the  question 
which  it  proposed  to  itself,  and  which  it  answered  for  itself.  It  is  under 
the  .application  of  these  principles  that  the  case  of  the  Shenandoah  is 
supposed  to  be  protected  from  being  a  violation  of  the  law  of  nations, 


I  -'n 


A.  ■'•- 

1. 

1 

M 

1 

mt^M  ■  ■'^i 

i 

1 

464 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


if 


W'' 


which  prohibits  the  use  of  ports  and  waters  of  a  neutral  as  a  base  of 
naval  operations.  I  do  not  propose  to  argue  upon  the  facts  of  the  case 
of  the  Shenandoah,  but  only  to  submit  the  jfrinciples  on  which  they  are 
to  be  considered. 

Sir  Alexander  Cockburn,  "1  wouUl  like  to  ask  you,  Mr.  Evarts, 
whether  your  i)ropositiou  involves  this:  That  every  time  a  belligerent 
steam-vessel  puts  into  a  neutral  port  for  the  purpose  of  getting  coal, 
and  then  goes  forward  upon  her  further  object  of  war,  that  there  is  a 
violation  of  neutral  territory.  I  just  want  to  draw  your  attention  to  this 
point.  What  I  want  to  understand  is,  what  difference  there  is  between 
the  ships  of  one  nation  and  the  ships  of  another  nation,  as  regards  thin 
matter  of  coal.  Would  the  principle  of  your  argument  apply  to  the  ves- 
sels of  other  belligerents?" 

Mr.  EvARTS.  Of  course  it  is  to  be  applied  to  all  belligerents;  and  when 
the  case  arises  for  complaint,  it  is  to  be  judged  in  view  of  all  the  facts 
and  circumstances,  whether  it  falls  within  the  license  of  hospitality,  or 
whether  it  is  a  resort  as  to  a  base  of  operations — that  is  to  say,  whether 
the  whole  transaction,  in  all  its  features,  amounts  to  a  concerted  and 
planned  use. 
Sir  Alexander  Cockburn.  "Planned  by  whom?" 
Mr.  EvARTS.  Why,  planned  by  the  belligerent. 
Sir  Alexander  Cockburn.  "A  ship  goes  into  a  neutral  port  without 
intimating  its  purpose  or  disclosing  whether  it  belongs  to  one  bellig- 
erent or  another." 
Mr.  EvARTS.  Take  the  case  of  the  Nashville. 
Lord  Tenterden.  "Take  the  Vanderbilt." 

Sir  Alexander  Cockburn.  "Well,  let  us  take  that  case.    She  goes 
into  a  neutral  port,  and  wants  coal  for  the  purpose  of  going  forth  agahi 
on  her  mission  of  war;   no  question  is  asked.    The  ship,  I  grant  you, 
comes  with  the  object  of  getting  coal  for  the  purpose  of  going  out  on  her 
errand  of  war,  and,  in  ont  sens<^.  uses  neutral  territory  as  a  base.    But 
the  neutral  knows  nothing  about  the  course  of  the  vessel  or  its  destina- 
tion, except  he  takes  it  for  granted  it  is  a  ship  of  war.    How  can  he  ho 
said  to  allow  the  territory  to  be  made  a  base  of  operations,  except  so  far 
as  it  applies  to  the  ships  of  a  belligerent?" 
Mr.  EvARTS.  It  does  apply,  but  1  have  not  said  that  this  alone  ren- 
dered the  neutral  responsible;   1  have  merely  laid  down  tlie 
facts.    The  magnitude  of  the  operations,  and  the  complete- 
ness of  their  relations  to  the  base  of  supplies,  ilo  not  alter 
the  application  of  principles.    After  all  there  is  left,  or 
course,  the  question  of  whether  you  have  suffered  or  allowed 
these  things,  or  have  used  due  dilif/ence  to  prevent  them,  and 
upon  the  discussion  of  that  subject  I  shall  not  trespass. 
Sir  AL15XANDER  Cockburn.  "But  that  is  the  very  question." 
Mr.  EvARTS.  But  that  question  could  not  arise  until  it  was  deteruiiiiod 
whether  the  belligerent  had,  fl.s'  matter  of  fact ^  made  the  neutral  port  a 
base  of  operations.    All  that  1  have  said  has  been  intended  to  show  that 
what  was  done  by  these  cruisers  did  make  the  neutral  ports  a  base,  just 
as  much  as  if  a  shallop  was  stationed  at  the  mouth  of  a  neutral  rivei', 
and  sent  out  a  boat  to  comnnt  hostilities.    In  either  case,  the  neutral  is 
not  responsible,  unless  it  has  failed  to  exercise  due  diligence.   But  there 
is  this  further  consequence  carrying  responsibility,  that  when  the  neutral 
does  not  know  of  such  an  act  until  after  it  has  been  committed,  it  is  }tH 
duty  to  resent  it  and  to  pn^vent  its  repetition,  and  to  deny  hospitality 
to  the  vessels  that  have  consummated  it.    Now,  these  questions  can 
certainly  be  kept  distinct.    If  the  fact  is  not  known,  and  if  there  is  no 


ThfiqiirMnoriof  liic 
UHR  of  the  ntMitral 
l«)rt  uH  a  ba>»t^  ol  u\- 
t'rutionH  Ix'itiK  '■wtah- 
li:*licd,  tlH're  ntiKiirjM 
l)i«  inquiry  wlii-tlur 
the  mnitntl  di.lordid 
iiiilexercis»>  du*-  diU< 
St'iice  to  prcv'iiT  it. 


'i.,.. 


If".  ^ 


MR.    EVARTS     SUPPLEMENTAL   ARGUMENT. 


465 


)ncertcHl  and 


SiM'li  iiro('t'"flirie:< 
nrp  not  nit're  ilpaliiiu 
III  (-(int  iviliiuid  of  vviir. 


want  of  due  diligeiuie,  tbcn  tUe  neutral  is  not  in  fault;  if  tlio  facts  are 
afterward  known,  then  the  cruiser  that  htis  coniinitted  tiie  violation  of 
neutrality  is  to  be  proscribed,  to  be  denied  hospitality,  to  be  detained 
in  port,  or  excluded  from  port,  after  notice,  or  without  notice,  as  the 
case  may  be. 

The  question  then  arises  whether  a  nation  thus  dealt  with  by  a  bellig- 
erent, and  having  the  power  to  stop  the  course  of  naval  operations  thus 
based,  if  it  iwirposely  omits  so  to  do,  does  not  make  itself  responsible  for 
their  continuance.  I  do  not  desire  to  be  drawn  into  a  discussion  upon 
the  facts  which  are  not  included  in  the  range  of  the  present  argument. 
I  now  am  simply  endeavoring  to  show  that  the  illustrations  of  Kent  and 
Stowell,  taken  from  navigation  and  maritime  war  then  prevailing,  do 
not  furnish  the  rule  or  the  limit  of  the  responsibility  of  neutrals  in  respect 
of  allowing  such  use  of  naval  bases,  nor  of  the  circumstances  which  make 
up  the  prohibited  uses  of  neutral  ports  for  such  bases. 

I  proceed  to  another  branch  of  the  subject.' 

It  is  said  that  the  concerted  setting  forth  of  the  Laurel  from  the  ntiu- 
tral  port,  to  carry  the  armament  and  the  m'unitions  of  war 
and  the  officers  and  the  crew  to  be  combined  outside  the 
neutral  jurisdiction  with  the  Shenandoah,  already  issued 
from  another  port  of  the  same  neutral,  is  only  a  dealing  in  contraband  of 
war.  1  deny  that  such  a  transaction  has  any  connection  with  dealing 
in  contraband  of  w^ar.  It  is  a  direct  obtaining  by  a  projected  cruiser  of 
its  supply  of  armament,  munitions,  and  men  and  oliicers  from  a  neutral 
port. 

There  may  be  no  fault  on  the  part  of  the  neutral  in  not  preventing  it. 
That  will  depend  on  the  question  of  "due  diligence  to  prevent,"  "  rea- 
sonable ground  to  believe,"  &c.,  &c.  But  the  principle  of  contraband  of 
war  does  not  protect  such  a  transaction,  and  that  is  the  only  principle 
that  has  been  appealed  to  by  the  British  Government  in  the  discussions 
of  this  matter  to  justify  it.  The  fiicts  of  this  vessel  going  out  were 
known 

Sir  Alexander  Cookburn.  "  Not  until  afterwards." 

Mr.  EvARTS.  The  law  of  nations  was  violated,  your  territory  ha<l  been 
used,  as  matter  of  fact,  we  claim,  as  the  base  of  naval  operations,  and 
it  was  not  a  dealing  in  contraband  of  w  ar.  It  was  not  a  commercial 
transaction.  It  was  a  direct  furnishing  of  a  cruiser  with  armament  from 
your  port.  It  might  as  well  have  been  accomplished  within  three  miles 
of  your  coast.    Yet,  it  is  said  this  is  no  offense  against  j'our  law. 

Sir  Alexander  Cockburn.  "  I  do  not  say  that." 

Mr.  Evarts.  Unfortunately  for  the  United  States,  through  the  whole 
war,  we  had  quite  other  doctrine  from  those  who  laid  down  the  law  for 
Great  Britain  in  these  matters.  Fortunately,  we  have  better  doctrine 
bopf'  and  how.  But  according  to  the  law  as  administered  in  England 
suoii  combinations  of  the  materials  of  naval  war  could  be  made  outside 
ot  her  ports,  by  the  direct  action  of  the  belligerent  Government,  deriv- 


'  In  cnunectiou  with  this  discussion,  I  ask  attention  to  the  course  taken  by  tlie  Gov- 
ernment of  Brazil  in  resentment  and  punishment  for  the  incidental  violation  of  its  neu- 
trality by  the  Florida,  (within  the  neutral  waters,)  and  by  the  Siieuandoah,  by  her 
commander  violating  tlie  Consular  seal  of  Brazil  on  boanl  one  of  the  Shenandoah's 
prizes.  In  both  instances,  the  offending  cruisers  were  perpetiuUly  excluded  from  the 
ports  of  the  empire ;  and  the  exclusion  embraced  any  other  cruiser  that  should  be  com- 
manded  by  the  captain  of  the  Shenandoah. 

The  treatment  of  the  Rappahannock  by  the  French  Government,  which  detained  her 
in  port  till  the  close  of  the  war,  is  well  worthy  of  attention.  The  transaction  is  de- 
tailed in  the  App.  Am.  Counter  Case,  pp.  917-946. 

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466 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


ing  all  the  materials  from  lier  ports  and  planning  thus  to  combine  them' 
outside. 

Sir  Alexander  Cockburn.  "If  that  had  been  shown." 

Mr.  EvARTS.  The  proofs  do  show  it,  and  that  the  doctrine  Avas  tliat  u 
waa  lawful  and  should  not  be  interfered  with. 

I  disclaim  any  desire  or  purpose  of  arguing  upon  the  facts  of  par- 
ticular vessels.  I  am  merely  laying  down  priucii>les  applicable  to  sup. 
posed  facts.  If  the  principles  were  conceded  I  would  have  no  occasion 
to  deal  with  questions  of  fact  at  all. 

The  learned  Chief  Justice  has  very  satisfactorily,  certainly  to  us,  pres- 
ently expressed  certain  legal  o])iuions  on  this  subject ;  but  I  must  say 
that  they  were  not  entertained  by  the  Government  of  Great  Britain  and 
did  not  control  its  action. 

I  think  that  the  proofs  before  the  Tribunal  can  be  easily  referred  to  to 
confirm  the  position  I  have  taken  as  to  the  legal  doctrine  held  in  Eng- 
land in  reference  to  this  subject  of  the  base  of  operations.  In  contra- 
diction of  that  doctrine  we  now  insist,  as  our  Government  all  througU 
the  war  insisted,  this  is  not  dealing  in  contraband  of  war ;  it  <s  using 
neutral  territory  as  a  base  of  operations.  Whether  there  was  or  should 
be  no  responsibility  for  it,  because  it  was  not  known  or  could  not  be 
prevented,  is  an  entirely  dift'erent  question.  But  I  undertake  to  say,  asi 
matter  of  fact,  that  the  doctrine  of  the  English  law  during  all  those  juo- 
ceedings  was  that  such  projects  and  their  execution  as  a  contributory 
concurrence  with  the  outfit  of  the  principal  cruisers  for  naval  operations 
(such  cases  as  those  of  the  Laurel,  the  Alar,  the  Agrippina,  the  Bahama, 
and  similar  vessels)  were  lawful,  and  could  not  aud  should  not  be  pre- 
vented. 

Sir  Alexander  Cockburn.  "I  would  be  very  much  obliged  if  you 
will  refer  me  to  some  authority  for  that." 

Mr.  EvARTS.  I  will.  One  of  the  arbitrators,  (Mr.  Adams,)  from  his 
knowledge  of  the  course  of  the  correspondence,  knows  that  I  do  not  de- 
ceive myself  in  that  respect.  It  is  this  contributory  furnishing  of  arma- 
ment and  munitions  and  men  which  rendered  the  principal  cruisers 
efficient  instruments  of  all  the  mischief,  and  without  which  their  eva- 
sions from  port  were  of  little  consequence,  and  without  the  expectation 
of  which  t^f  ey  never  would  have  been  planned. 

I  now  re.er  to  a  paper  that  will  show  that  I  have  been  right  in  my 
proposition  as  to  the  construction  of  English  law  as  held  during  the 
occurrence  of  these  transactions. 

In  vol.  iii  of  American  Appendix,  (p.  53,)  in  a  report  to  the  Board  ot 
Trade  by  the  Commissioners  of  Customs,  occurs  this  passage: 

Custom  House,  Sejttcmbev  25,  l^tii. 

Your  lonlsliijis  Laving,  l»y  Mr.  Arlmtliiiot's  letter  of  tlie  IGth  instant,  transinittcd  to 
U8,  with  reference  to  Mr.  Hamilton's  letter  of  the  2(1  ultimo,  the  inclosed  comnmiiica- 
tion  froia  the  Foreijjn  Odice,  with  copies  of  a  further  letter  and  its  inclosures  from  tlm 
United  States  Minister  at  this  Conrt,  reHpectinf!;  the  supply  of  cannon  aud  uinnitionsdl 
war  to  the  gui\-boat  No.  290,  recently  built  at  Liverpool,  and  now  in  the  service  of  tlu' 
so-called  Confederate  States  of  America;  and  your  lordships  having  desired  tiiat  wi 
would  take  such  steps  as  might  seem  to  be  required  in  view  of  the  facts  therein  npii- 
sented,  and  report  the  result  to  your  lordships,  we  have  now  to  report: 

That,  assuming  the  statement  set  forth  in  the  affidavit  of  Reddin,  (who  sailed  from 
Liverpool  iu  the  vessel,)  which  accompanied  Mr.  Adams's  letter  to  Earl  Russell,  tn  tn' 
correct,  the  furnishing  of  arms,  »&c.,  to  the  gun-boat  does  not  appear  to  have  rakiii 
place  in  any  ]>art  of  the  United  Kingdom  or  ot  Her  Majesty's  dominions,  but  in  •>! 
near  Angra  Bay,  part  of  the  Azores,  part  of  the  Portuguese  dominions.  No  otleusi'. 
therefore,  cognizabUs  by  the  laws  of  this  country,  appears  to  have  been  committed  by 
the  parties  engaged  in  the  transaction  alluded  to  in  the  attidavit. 

From  Lord  Russell's  communication  of  this  Tveport  to  the  American 


tewas  thafu 


obliged  if  you 


MR.    EVARTS'    SUPPLEMENTAL   ARGUMENT. 


467 


tlie  American 


Minister,  it  will  be  seen  that  the  accepted  opinion  of  the  Government 
was,  that  such  operations  could  not  be  interfered  with,  and  therefore 
would  not  be  interfered  with.  That  maj'  bo  a  correct  view  of  the 
Foreign-Enlistment  Act  of  Great  Britain,  and  hence  the  importance  of 
reducing  the  obligations  of  a  neutral  nation  to  prevent  violations  of 
international  law  to  some  settled  meaning. 

This  was  done  by  convention  between  tlie  High  Contracting  Parties, 
and  appears  in  the  Rules  of  the  Treaty.  Under  these  Rules  is  to  be 
maintained  the  inculpation  which  we  bring  against  Great  Britain,  and 
which  I  have  now  discussed,  because  tlie  subject  is  treated  in  the 
special  argument  to  which  I  am  replying.  The  instances  of  neutral 
default  announced  under  the  second  Rule  are  made  penal  by  the  law  of 
nations.  Tliey  are  proscribed  by  the  second  Rule.  They  are  not  pro- 
tected as  dealings  in  contraband  of  war.  They  are  not  protected  under 
the  right  of  asylum.  They  are  uses  of  neutral  ports  and  waters  as 
bases  of  naval  operations,  and  if  not  prohibited  by  the  Foreign-Enlist- 
ment Act,  and  if  the  British  Executive  Government  could  not  and 
would  not  prevent  them,  and  that  was  the  limit  of  their  duty  under 
their  Foreign-Enlistment  Act,  still  we  come  here  for  judgment,  whether 
a  nation  is  not  responsible  that  deals  thus  in  the  contribution  of 
military  supplies,  that  sutlers  ship  after  ship  to  go  on  these  errands, 
makes  no  effort  to  stop  them,  but,  on  the  contrary,  announces,  as  the 
result  of  the  deliber.ation  of  the  Law-Officers,  to  the  subordinate  officials, 
to  the  Minister  of  the  United  States,  to  all  the  world,  that  these  things 
are  not  prohibited  by  the  law  of  Great  Britain,  find  cannot  be  prohibited 
by  the  Executive  Government,  and  therefore  cannot  and  will  not  be 
stopped.  That  this  was  the  doctrine  of  the  English  Government  will 
be  seen  from  a  letter  dated  the  2d  of  April,  1.SG.3,  of  Lord  Russell, 
found,  in  part,  in  vol.  ii,  American  Appendix,  p.  404;  and,  in  part,  in 
vol.  i,  ihkl.^  p.  590  : 

But  the  question  really  is,  lias  tLere  been  any  act  done  in  Enj^land  botb  contrary  to 
the  obligations  of  neutrality  as  recognized  by  Oreat  Britain  and  the  United  States, 
and  cajxible  of  being  made  the  subject  of  a  criminat  pronevtilioti  f  I  can  only  repeat  that, 
iu  the  opinion  of, Her  Majesty's  Goverunieut,  no  such  act  is  specified  in  the  papers 

which  you  havo  submitted  to  me. 

#  #  *  #  *  «  * 

I,  however,  willingly  assnre  yon  that,  in  view  of  the  statements  contained  in  the 
intercepted  correspondence.  Her  Majesty's  Government  havo  renewed  the  instructions 
already  given  to  the  custom-house  authorities  of  the  several  British  ports  where  ships 
of  war  may  be  constructed,  and  by  the  Secretary  of  State  for  the  Homo  Department 
to  various  authorities  with  whom  he  is  in  communication,  to  endeavor  to  discover  and 
obtain  leg.al  evidence  of  any  violation  of  the  Foreign-Enlistment  Act,  with  a  view  to 
the  strict  enforcement  of  that  statute  whenever  it  can  really  be  shown  to  be  infringed. 

It  seems  clear,  on  the  principle  enunciated  in  these  authorities,  that,  excei»t  on  the 
Kionnd  of  any  proved  violation  of  the  Foreign-Enlistment  Act,  Her  Majesty's  Govern- 
ment cannot  interfere  with  commercial  <bMi]iiigs  between  British  subjects  and  the  so- 
styled  Confederate  States,  wlietiier  the  subject  of  those  dealings  be  money  or  contra- 
Itiuid  goods,  or  even  ships  adapted  for  warlike  purposes. 

These  were  instances  in  which  complaints  were  made  of  these  transac- 
tions, and  in  which  it  was  answered  that  the  British  Government  charged 
itself  with  no  duty  of  due  diligence,  with  no  duty  of  remonstrance,  with 
no  duty  of  prevention  or  denunciation,  but  simply  with  municipal  prose- 
cutions for  crimes  against  the  Foreign-EulistmeLfc  Act. 

What  I  have  said  of  the  Shenandoah,  distinguished  her  from  the 
Florida,  and  the  Alabama,  and  the  Georgia,  only  in  the  fact  th  it,  from 
the  beginning  to  the  end  of  the  Shenandoah's  career,  she  had  no  port  of 
any  kind,  and  had  no  base  of  any  kind,  except  the  ports  of  the  single 
nation  of  Great  Britain.    But  as  to  the  Florida  and  the  Alabama,  one 


f 


V\ 


1^' 


w 


468 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


!»■ 


i  I' 


■t* 


(the  Alabama)  was  supplied  by  a  tiijj,  or  steamer,  that  took  out  lier 
jirmaraeut  to  Anj^ra  Bay,  the  place  of  her  lirst  resort ;  the  other  (the 
Florida)  was  supplied  by  a  vessel  seut  out  to  Kassau  to  meet  her,  car- 
rying all  her  armament  and  munitions  of  war,  and  which  she  took  out 
in  tow,  transshipping-  her  freight  of  war-material  outside  the  line  of  neu- 
tral waters. 

I*  That  is  called  dealing  in  contraband,  not  proscribed  by  the  law  of 
nations,  not  proscribed  by  any  municipal  law,  and  not  involving  any 
duty  of  Great  Britain  to  intercept,  to  discourage  or  denounce  it.  That 
is  confounding  substance  with  form.  But  let  me  use  the  language  of 
an  Attorney-General  ofiingland,  employed  in  the  Parliamentar -discus- 
sions which  attended  the  enactment  of  the  Foreign-Enlistmen  •:  Act  of 
1819. 

From  this  debate  in  Parliament,  it  will  be  seen  what  the  principal  law- 
adviser  of  the  Crown  then  thought  of  carrying  on  war  by  ^'■commercial 
trantiaetions :" 

Such  an  euactuiriit  [he  said]  wa.s  required  l).v  every  principle  of  justice;  for  wlum 
the  State  says,  "  Wc  will  Lave  iiothiuK  to  »lo  witli  the  war  watjed  hetweeu  two  separatf 
powers, '  and  the  subjects  in  opposition  to  it  say,  "  We  will,  however,  interfere  iu  it,' 
surely  the  House  would  see  the  necessity  of  enacting  some  penal  statutes  to  prevent 
them  from  doing  so  ;  unless,  indeed,  it  was  to  be  contended  that  the  State,  and  the  sub- 
jects who  composed  that  State,  might  take  distinct  and  opposite  sides  iu  the  quarrel. 
He  should  now  allude  to  the  petitions  which  had  that  evening  been  presented  to  the 
House  against  the  bill ;  and  here  he  could  not  but  observe,  that  they  had  either  totally 
misunderstood  or  else  totally  misrepresented  its  intended  object.  They  had  stated 
that  it  was  calculated  to  check  the  commercial  transactions  and  to  injure  the  com- 
mercial interests  of  this  country.  If  by  the  words  "  commercial  interests  and  commer- 
cial transactions"  were  meant  "  warlike  adventures,"  he  allowed  that  it  would  ;  but  if 
it  were  intended  to  argue  that  it  would  diminish  a  fair  and  legal  and  pacific  commerce, 
he  must  enter  his  protest  against  any  such  doctrines.  Now,  he  maintained,  that  o.s  Kar 
was  actually  carried  on  against  Spain  by  what  the  petitioners  called  "  commercial  transac- 
tions "  it  was  the  duty  of  the  House  to  check  and  injure  them  as  speedily  as  possible. — {Note 
B,  American  Argument,  p.  2iU  ;  Fr.  tr.  Appendice,  p.  488.) 

AA'ar  against  the  United  States,  maritime  war,  was  carried  on  under 
cover  of  what  was  called  right  of  asylum  and  commercial  iransactions 
in  contraband  of  war.  We  are  now  under  the  law  of  nations,  by  virtue 
of  this  second  Rule,  which  says  that  the  use  of  "  ports  and  waters  as 
the  base  of  naval  operations,  or  for  the  purpose  of  the  renewal  or  aug- 
mentation of  military  supplies  or  arms  or  the  recruitment  of  men,"  sball 
not  be  allowed,  and  if  the  facts  of  such  dealing  shall  be  found,  and  tbe 
proof  of  due  diligence  to  prevent  them  shall  not  appear  in  the  proofs. 
under  that  second  Kule  all  four  of  these  cruisers  must  be  condemned  by 
the  Tribunal. 

I  do  not  pass,  nor  venture  to  pass,  in  the  present  argument,  upon  the 
question  whether  there  has  been  in  this  matter  a  lack  of  due  diligence. 
In  the  discussion  of  my  learned  friend  every  one  of  these  instances  is 
regarded  as  a  case  not  within  the  second  Rule,  and  as  a  simjjle  dealing 
in  contraband  of  war. 

Sir  RouNDELL  Palmer.  "  I  must  be  permitted  to  say  that  I  have  uot 
felt  myself  at  liberty  to  go  into  a  discussion  of  individual  cases." 

Mr.  EvARTS.  The  vessels  are  treated  iu  the  argument  of  the  learued 
Counsel. 

Sir  RouNDELL  Palmer.  "  There  may  be  passages  in  reference  to 
some  of  the  principal  topics  which  have  been  mentioned,  but  1  bave 
avoided  entering  upon  any  elaborate  consideration  of  each  particular 
vessel.    There  is  no  distinct  enumeration  of  the  vessels." 

Mr.  EvARTS.  There  is,  so  distinct  as  this  it  is  expressly  stated  that 
under  the  law  neither  the  Georgia,  nor  the  Shenandoah,  nor  the  sub 
sidiary  vessels  that  carried  their  armaments  to  the  Georgia  and  Sheiiau- 


"Tfl 


MR.    EVAKTS     SUIM'LEMENTAL    AK(iUMKNT. 


4G9 


doali  and  to  tbe  Florida  aud  Alabama,  had,  in  so  doin<j,  committed  a 
bresich  of  neutrality. 

I  am  arguing  now  under  the  second  Rule.  I  have  not  felt  that  I  was 
transcending  the  proper  limits  of  this  debate,  because,  in  answer  to  the 
special  argument  of  the  eminent  Counsel,  1  have  argued  in  this  way. 
My  own  view  as  to  the  extension  of  the  argument  of  the  learned  Coun- 
sel in  his  discussion  of  what  is  called  "  due  diligence,''  as  a  doctrine  of 
the  law  of  nations,  would  not  have  inclined  mo  to  expect  so  large  a  tield 
of  discussion  as  he  covered.  But,  as  I  have  admitted  in  my  introduc- 
tory remarks,  the  question  of  due  diligence  connects  itself  with  the 
measure  of  tluty  and  the  manner  in  which  it  was  performed,  and  I  felt 
no  ditticulty  in  thinking  that  the  line  could  not  be  very  distinctly 
drawn. 

1  have  undertaken  to  argue  this  question  under  a  state  of  facts,  which 
shows  that  a  whole  ni'A'al  project  is  supplied,  from  the  first  outfit  of  the 
cruiser  to  the  iinal  end  of  tlie  cruise,  by  means  of  this  sort  of  connec- 
tion with  neutral  ports  and  waters  as  a  base  of  naval  operations ;  and  I 
have  insisted  that  such  naval  operations  are  not  excluded  from  the  pro- 
scription of  the  second  Kule,  by  what  is  claimed  in  the  argument  of  the 
learned  Counsel  as  the  doctrine  of  contraband  of  war  and  the  doctrine 
of  asylum. 


It! 


At  the  Conference  of  the  Tribunal,  held  on  the  Gth  day  of  Aiif/usf,  Mr. 

I'h'arts  continued  as  follows : 

I  was  upon  the  point  of  the  doctrine  of  the  British  (roverumcnt,  and 
its  action  under  tliat  doctrine,  as  bearing  upon  the  outfit  of 
the  contributory  provisions  of  armament,  munitions,   and  isnuTrrsmMrnt 'o" 
men,  set  forth  in  such  vessels  as  the  Bahama,  the  Alar,  and 
Laurel.    The  correspondence  is  full  of  evidence  that  1  was  correct  in  my 
statement  of  the  doctrine  of  the  British  (iovernment,  and  of  its  ac- 
tion from  beginning  to  end  being  controlled  by  that  doctrine ;  and  all 
the  remonstrances  of  the  United  States  were  met  by  the  answer  that 
the  law  of  nations,  the  Foreign-Enlistment  Act,  the  duty  of  neutrality, 
had  nothing  whatever  to  do  with  that  subject,  as  it  was  simply  dealing 
in  contraband  of  war.     The  importance  of  this  view,  of  course,  and  its 
immense  influence  in  producing  the  i)rcsent  controversy  between  the  two 
nations,  are  obvious.  The  whole  mischief  was  wrought  by  the  co-operating 
lorce  of  the  two  legal  propositions:  (1.)  That  the  unarmed  cruiser  was  not 
itself  a  weapon  of  war,  an  instrument  of  war,  and,  therefore,  was  not  to  be 
intercepted  as  committing  a  violation  of  the  law  of  uations  ;  and,  (2.) 
That  the  contributory  inovision  by  means  of  her  supply-ships,  of  her 
armament,  munitions,  and  men,  to  make  her  a  complete  instrument  of 
naval  hostilities,  Avas  also  not  a  violation  of  the  law  of  uations,  but 
simply  a  commercial  dealing  in  contraband.    It  was  only  under  those 
combined  doctrines  that  the  cruiser  ever  came  to  be  in  the  position  of 
an  instrument  of  offensive  and  defensive  war,  and  to  be  able  to  assume 
the  "  commission"  prepared  for  her,  and  which  was  thenceforth  to  pro- 
tect her  from  interierence  on  the  doctrine  of  comity  to  sovereignty. 

So,  too,  it  will  be  found,  when  we  come  to  consider  the  observations 
of  the  eminent  Counsel  on  the  subject  of  due  diligence,  to  which  I  shall 
have  occasion  soon  to  rei)ly,  that  the  question  whether  these  were  hostile 
wtfi,  under  the  law  of  nations,  was  the  turning  point  in  the  doctrine  of 
the  Government  of  Great  Britain,  and  of  its  action,  as  to  whether  it 
would  intercept  these  enterprises  by  the  exercise  of  executive  power^  as 


I. 


1 3i 


rrrpr 


i: 


nfrT 


i;i- 
^ 


■  jf^ 


i'.i)  ■ 


I :  ■ 


■:3l|'! 


470 


SUrPLEMENTARV  ARGUMENTS  AND  STATEMENTS. 


a  noutral  government  would  intercept  anything  in  the  nature  of  a  hostile 
act  under  the  law  of  nations.  The  doctrine  was  that  these  were  not 
hostile  acta  sepmuxtcly,  and  that  no  hostile  act  arose  unless  these  sojja 
rate  contributions  were  combined  in  the  ports  of  (ireat  Britain ;  that 
there  was  no  footing  otherwise  for  the  obligation  of  the  law^  of  nations 
to  establish  itself  upon  ;  that  there  was  no  remissness  of  duty  on  the 
part  of  the  neutral  in  respect  of  them  ;  and  finally  that  these  operatioii.s 
were  uot  violations  of  the  Foreign-Enlistment  Act.  All  this  is  shown 
by  the  Avhole  correspondence,  and  by  the  decisions  of  the  municijial 
courts  of  England,  in  regard  to  the  only  question  passed  ui)on  at  all, 
that  of  unarmed  vessels,  so  far  as  they  ever  passed  even  upon  that  ques- 
tion. 

It  has  seonu'd  to  bo  intimated  by  observations  wliich  the  learued 
Counsel  has  done  me  the  honor  to  make  during  my  i)reseut  considera- 
tion of  this  topic,  that  my  argument  has  transcended  the  ])roper  liiiiit 
of  reply  to  the  special  argument  which  the  eminent  Counsel  himself  lias 
made  ou  the  same  topic.  A  reference  to  the  text  of  that  argunient  will, 
I  think,  set  this  (iuestion  at  rest. 

In  the  lifteenth  section  of  the  first  chapter  of  his  argument,  he  doo!- 
us  the  honor  to  quote  certain  observations  in  our  i)rincipal  Argument  to 
which  he  proposes  to  reply.  He  quotes,  at  page  17  of  his  argument,  as 
follows : 

(2.)  The  next  grt'iit  failure  off  Jicat  f5ritaiii"to  use  cliio  (lili;j,fiict!  to  piovciit  '  the 
violation  of  its  iioutrality,  iii  the  matters  within  the  Jurisiliction  of  the  Trihnnal,  i.i 
shown  in  its  entire  omission  to  exert  the  ilireet  executive  anthorit.v,  lo(l;;(;(l  in  tiio 
Royal  l'rero}j;ativo,  to  intercept  the  preparations  and  outlits  of  the  oifendinjf  vessels, 
unci  the  contributory  provisions,  of  armament,  munitions  and  men,  which  were  eiiiitteil 
from  various  ports  of  the  I'niteil  Kiufjdom.  We  do  not  lin»l  in  the  ]3ritish  Case  or 
Counter  Case,  any  serious  contention,  but  that  such  powers  as  pertain  to  the  Pri^roga- 
tive,  in  the  maintenance  of  international  relations,  and  are  exercised  as  such  by  otiiei- 
great  powers,  would  have  prevented  the  escape  of  every  one  of  the  otfendinjif  vessels 
emitted  from  British  ports,  and  precluded  the  :nib8idiary  aids  of  warlike  cr|uipnient 
and  supplies  which  set  them  forth,  and  kept  them  ou  foot,  for  the  maritime  hostilities 
which  they  maintained.' 

The  comment  of  the  learned  Counsel  upon  this  passage  is  found  ou 
the  same  page  (17)  of  his  argument,  ns  follows : 

With  respect  to  the  second  passage,  it  is  to  he  observed,  that  it  uot  only  imputes  as 
a  want  of  due  diligence,  the  abstinence  from  the  use  of  arbitrary  power  to  supjily  a 
supposed  deficiency  of  legal  powers,  but  it  assumes  that  the  L'uited  States  had  a  right, 
by  iuteruational  law,  to  request  Great  Jiritain  to  prevent  the  exportation  from  her  ter- 
ritory of  what  it  describes  as  "  contributory  provisious,"  arms,  munitions,  and  "subsi- 
diary aids  of  warlike  equipment  and  supplies,"  tliougli  such  elements  of  armanieiit 
were  nncombined,  and  were  not  destined  to  be  combined,  within  British  jnrisdictiou, 
but  were  exported  from  that  territory  under  the  conditions  of  ordinary  exports  of  arti- 
cles contraband  of  war.  For  such  a  pretension  no  warrant  cau  be  found,  either  in  in- 
ternational law,  or  in  any  municipal  law  of  Great  Britain,  or  in  any  one  of  the  Throe 
Rules  contained  in  the  sixth  Article  of  the  Treaty  of  Washington. 

I  respectfully  submit,  therefore,  that  in  the  observations  I  have  had 
the  honor  to  make  upon  this  subject,  I  can  hardly  be  said  to  have  ex- 
ceeded the  due  limits  of  an  argument  in  reply.  I  fail  to  find,  in  what 
the  eminent  Counsel  here  advances  in  behalf  of  his  Government,  auy 
answer  to  my  assertion  that,  during  the  whole  course  of  the  war,  (a  pe- 
riod when  he,  as  Solicitor-General  or  as  Attorney-General  of  England, 
was  one  of  the  law-advisers  of  the  Government.)  the  action  of  Great 
Britain  was  governed  by  the  doctrine  which  I  h^ve  stated.    This  was 


'  An  error  has  occurred  in  the  French  translation  of  this  passage  of  the  Americcan 
Argument.  lu  the  lifteenth  and  sixteenth  lines  of  page  343,  the  words  "I'armement  de 
naviros  hostilcs  et  les  fournitures  de  vivres,"  should  read,  "l'e<xuipment  de  navires  hos- 
tiles,  et  les  fournitures  subsidiaires." 


MR.    EVARTS'    SLTPLEMENTAL    ARdl'MENT. 


471 


0  is  foiuul  oil 


publicly  iinnoiinced  and  it  was  so  understood  by  the  lobel  agonta,  by  the 
interests  involved  in  these  maritime  hostilities,  by  the  United  States 
Minister,  by  the  oftieials  of  the  British  Government,  by  everybody  who 
bad  to  act,  or  ask  for  action,  in  the  premises. 

The  first  instance  arising  was  of  the  vessel  that  carried  ont  the  arraa- 
iiiont  and  mnnitions  for  the  Alabama,  and  the  answer  was  as  I  read  from 
the  report  of  the  Commissioners  of  Customs  to  the  JJoard  of  Trade. 
This  otlici.al  paper  stated  that  the  Commissioners  found  nothing  in  that 
atfair  that  touched  the  obligations  of  Great  Britain.  This  was  commu- 
nicated to  Mr.  Adams,  and  that,  thenceforth,  was  the  doctrine  and  action 
of  the  Government  of  Great  Britain. 

The  view  of  an  eminent  publicist  on  this  point,  as  a  question  of  inter- 
niitional  law,  may  be  seen  from  an  extract  tbundat  i)age  177  of  the  Case 
of  the  United  States.    M.  IJolin-Jacquemyns  says: 

II  nous  s»>m1)l<>  (\\io  I'iiiloption  <Vuno  piircillo  piojioisitioii  (<i|uivim(lrait  h  rincliiiatioii 
(Vim  nioyen  t'acilo  (roluder  In  icf^lo  qui  «l<1clani  incompiitiMo  avtH'  la  iieiitialito  d'aii 
jiayH  rorganiwatioii,  sur  stm  tcnitoin;  ircxinnlitions  iiiilitairt's  an  .sei'vico  d'nii  des  bel- 
]i<{<'i'aiitH.  II  Hulliia,  s'il  s'ajjit  d'liiio  ciitrciiriso  iiiaiitiiiin,  do  lain!  itartir  cu  deux  on 
trois  IViis  les  (^lemeiit.s  ((iii  la  coiistitut'iit ;  iTalHtid  lo  vaisscaii,  iniis  Ics  homines,  puis  los 
arnios,  et  si  tons  cos  oli'Muents  no  Mdrt-joi^iUtMit  rjiu'  liors  d(>s  «'aux  de  la  puissatico  lunitre 
<iui  les  alaisses  paitir,  la  uoutraliti'  sera  iutacto.  Nous  peusous  ijuo  cettc  LuU'rpictatiou 
lie  la  loi  inteiiiationalc  n'est  ui  laisonablo,  ui  eiiuitahle. 

It  will  be,  then,  for  the  Tribunal  to  decide  what  the  law  of  nations  is 
on  this  subject.  If  the  Tribunal  shall  assent  to  the  principles  which  I  have 
insisted  upon,  and  shall  find  them  to  be  embraced  within  the  provisions 
of  the  three  llules  of  this  Treaty,  and  that  the  facts  in  the  case  require 
the  application  of  these  principles,  it  stands  admitted  that  Great  Britain 
lias  not  used  and  has  refused  to  use  any  means  whatev^er  for  the  inter- 
ruption of  these  contributory  provisions  of  armament  and  munitions  to 
the  ott'ending  cruisers. 

It  is  not  for  me  to  dispute  the  ruling  of  the  eminent  lawyers  of  Great 
Britain  ui)on  their  Foreign-Enlistment  Act ;  but,  for  the  life  of  me,  I  can- 
not see  why  the  Alar,  and  the  Alabama,  and  the  Laurel,  when  they 
sailed  from  the  ports  of  England  with  no  cargo  whatever  except  the 
armament  and  munitions  of  war  of  one  of  these  cruisers,  and  with  no 
errand  and  no  employment  except  that  of  the  Eebel  Government, 
through  its  agents,  to  transport  these  armaments  and  munitions  to  the 
cruisers  which  awaited  them,  were  not  "  transports "  in  the  service  of 
one  of  the  belligerents  within  the  meaning  of  the  Foreign-Enlistment  Act 
of  Great  Britain.  That,  however,  is  a  question  of  municipal  law.  It  is 
with  international  law  that  we  are  dealing  now  a^  here.  The  whole 
argument,  to  escape  the  consequences  which  international  law  visits  upon 
the  neutral  for  its  infractions,  has  been  that  whatever  was  blameworthy 
was  so  only  as  an  infraction  of  the  municipal  law  of  Great  Britain.  And 
when  you  come  to  transactions  of  the  kind  I  am  now  discussing,  as  they 
were  not  deemed  violations  of  the  Foreign-Enlistment  Act  uor  of  interna- 
tional law,  and  as  the  powers  of  the  Government  by  force  to  intercept, 
tliough  the  exercise  of  prerogative  or  otherwise  did  not  come  into  play, 
the  argument  is  that  there  were  no  consequences  whatever  to  result  from 
these  transactions.  They  were  merely  considered  as  commercial  trans- 
actions in  contraband  of  war. 

But  the  moment  it  is  held  that  these  things  were  forbidden  by  the 
law  of  nations,  then,  of  course  it  is  no  answer  to  say,  you  ti,.  »rming  nn.i 
cannot  indict  anybody  for  them  under  the  law  of  Great  ;;;':"";;,:« 't,^^^:,, 
Britain.  Nor  does  the  law  of  nations,  having  laid  down  a  '->  'h.'iawofnatio..». 
<luty,  and  established  its  violation  as  a  crime,  furuish  no  means  of  re- 
dressing the  iiy  ury  or  of  correcting  or  punishing  the  evil.    What  course 


i- 


s*. 


TT 


HI 


!:•: 


1  ! 


•,^. 


mh 


l.- 


i;f 


^1^1 -pi.;  .  ^ 


472 


SUPI'LKMENTARY    ARGUMENTS    AND   STATEMP:NTS. 


Til''  ciiriHrniliiin 
of  tliH  riili"  cii'  ilif 
Trtaly. 


does  it  sanction  when  ncntral  territory  is  violated  by  takitij;  prizt's 
within  it?  When  the  i>rize  comes  within  the  Jnrisdiction  of  tin*  mii. 
tral,  he  is  authorized  to  take  it  from  the  ort'endinj;  belligerent  by  lorce 
and  release  it.  What  course  <ioes  it  sanction  when  a  cruiser  has  been 
armed  within  neutral  territory  ?  When  tlie  vessel  comes  within  the 
jurisdiction  of  the  neutral  ho  is  authorized  to  disarm  it. 

Now,  our  proposition  is  that  these  cruisers,  thus  derivinj;-  their  force 
for  war  by  these  outfits  of  tenders  with  their  arnianienr 
fnr.. 'im^'TruT:  and  munitions  and  men,  when  brought  within  the  IJritisli 
n.'iM«'  .,"..".,"  Il'ii'.'  juiisdiction,  should  have  been  (limrnicU  because  they  liad 
""""'""""  been  armed,  in  the  sense  of  the  law  of  nations,  by  using  as 

a  base  of  their  maritime  hostilities,  or  their  maritime  fitting  for  hostil- 
ities, the  ports  and  waters  of  this  neutral  state. 

Why,  what  would  be  thought  of  a  cruiser  of  the  United  States  lying 
off  the  port  of  Liverpool,  or  the  port  of  Ushant  in  France,  and  await- 
ing there  the  arrival  of  a  tender  coming  from  Liverpool,  or  from  South- 
ampton,  by  pre-arrangement,  with  an  augmentation  of  her  battery  and 
the  supply  of  her  ligliting-(;rew  if  Would  it,  because  the  vessel  had  not 
entered  the  port  of  Southami)ton  or  the  i)ort  of  Liverpool,  be  less  a  vio- 
lation of  the  law  of  nations  which  i>rohibited  the  augmentation  of  the 
force  of  a  fighting-vessel  of  any  belligerent  from  the  contributions  of 
the  ports  of  the  neutral  1' 

The  fourth  chapter  of  this  special  argument  is  occupied,  as  I  have 
already  suggested,  with  the  consideration  of  the  true  inter- 
pretation of  the  rules  of  the  Treaty,  under  general  canons 
of  criticisuj,  and  under  the  light  which  should  be  thrown 
upon  their  interpretation  by  the  doctrines  and  practices  of  nations,  1 
respectfully  submit,  however,  that  the  only  really  useful  instruction 
that  should  be  scmglit,  or  can  be  applied,  in  aid  of  your  interpretation 
of  these  rules,  if  their  interpretation  needs  any  aid,  is  to  be  drawn 
from  the  situation  of  the  parties  and  the  elements  of  the  controversy 
between  them,  for  the  settlement  and  comj)osition  of  which  these  rules 
"were  framed  ;  and  this  Tribunal  was  created  to  investigate  the  facts  and 
to  apply  the  rules  to  them  in  its  award. 

The  whole  groun»l  of  this  controversy  is  expressed  in  the  firmest  and 
most  distinct  manner  by  the  statesmen  on  both  sides  who  had  charge 
of  the  negotiations  between  the  two  countries,  find  who  could  not  mis- 
understand  what  were  the  situation  and  the  field  of  debate  for  api)lica- 
tion  to  which  the  higji  contracting  parties  framed  these  rules.  And 
■what  were  they  i  Why,  primarily,  it  was  this  very  question  of  the  va- 
rious forms  of  contributori'  aid  from  the  neutral  ports  an<l  waters  of 
Great  Britain  by  which  the  Confederate  navy  had  been  made,  by  which 
it  was  armed,  by  which  it  was  supplied,  by  which  it  was  kept  on  foot, 
by  which,  without  any  base  within  the  belligerent  territory,  it  main- 
tained a  maritime  war. 

Anterior  to  the  negotiation  which  produced  the  Treaty,  there  is  this 
public  declaration  made  by  jMr.  Gladstone,  and  cited  on  page  215  of 
the  Case  of  the  United  States,  "There  is  no  doubt  that  Jefferson  Davis 
and  other  leaders  of  the  South  have  made  an  army ;  they  are  making.,  it 
appears,  a  navy.'''' 

There  is  the  speech  of  Lord  Eussell  on  the  20th  of  April,  18G4,  also 
cited  on  the  same  page : 

It  has  Leeii  UHiial  for  a  power  currying  on  Avar  upon  the  seas  to  posscBS  ports  of  its 
own  in  which  vessels  are  built,  equipped,  and  titted,  and  from  which  they  issue,  to 
■which  they  bring  their  prizes,  and  in  which  those  prizes,  when  brought  before  a  court, 
are  either  condemned  or  restored.    But  it  so  happens  that  in  this  conflict  the  Coufed- 


IF 


MK.    EVARTH     SriTLEMENTAL    AR(iUMENT. 


473 


erato  StntcH  havd  ii(»  jmrtH  »'xcf|if  tlumo  of  tlit»  ^fcrHoy  iinil  of  tlio  C'lyih",  from  which 
tlivy  tit  out  MliifiH  to  criiimi  a^uinHt  tlut  FiuUtiiIh  ;  aii<l  hiiviii^  net  purtH  to  vvhieU  to  briug 
theii'  prizes,  tlu-y  uru  obligftl  to  Ittiru  tlieiu  oil  tlit-  hi^li  hl-uh. 

There  is,  I'lirtliei more,  the  deehiration  of  Mr.  Fisli,  made  as  Secretary 
of  State,  ill  liis  celebrated  dispatch  c»f  the  L'oth  ol'  September,  18(}l>,  iu 
which  he  distinctly  juoimses  to  the  Jlritisli  (lovernmeiit,  in  repfard  to 
the  claim  of  the  United  States  in  this  controversy,  that  the  rebel  coun- 
sels have  made  CHrcat  Ihitain  "the  arsenal,  the  navy-yard,  and  the 
treasury  of  the  insurjjent  Confederates." 

That  was  the  controversy  between  the  two  countries,  for  the  solution 
}f  which  the  Kules  of  this  Treaty  and  the  deU'oerations  of  this  Tribunal 
were  to  be  called  into  action  ;  and  they  are  intended  to  cover,  and  do 
cover,  all  the  forms  in  which  this  use  of  ( I reat  Britain  for  the  meauH 
and  the  oi)portunities  of  keepin;^  on  foot  these  nuiritime  hostilities  was 
practiced.  The  first  rule  covers  all  <|uestions  of  the  outfit  of  the 
cruisers  themselves ;  the  second  rule  covers  all  the  means  by  which  the 
neutral  ports  and  waters  of  (Ireat  JJritain  were  us(ul  as  bases  lor  the 
rebel  nuiritime  operations  of  these  cruisers,  and  for  the  provision,  the 
renewal,  or  the  au;;inentation  of  their  force  of  armament,  munitions, 
ami  men.  Jloth  nations  so  agreed.  The  eminent  Counsel  for  the  IJrit- 
ish  Government,  in  the  special  arj^ument  to  which  I  am  now  replying", 
also  agrees  that  the  second  rule,  under  which  the  present  discussion 
arises,  is  conformed  to  the  pre-existing  law  of  nations. 

We  find,  however,  in  this  chajtter  of  the  special  argument,  .another 
introduction  of  the  retroactive  cjf'cct,  as  it  is  cal'ed,  of  these  lUiles  as  a 
reason  why  their  interpretation  sliouhl  be  diffV'rent  from  what  might 
otherwise  be  insisted  upon.  This  is  but  a  re-appearance  of  what  I  have 
already  exposed  as  a  vice  in  the  argui  ent,  viz,  that  these  Kules,  in 
respect  to  the  verj'  subject  for  which  tliey  wore  framed,  do  not  mean  the 
same  thing  as  they  are  to  mean  hereafter,  wiien  new  situations  arise  for 
their  application.  Special  methods  of  criticism,  artificial  limits  of  ap- 
1  'cation  are  resorted  to  to  disparage  or  distert  them  as  binding  and 
uiihoritive  rules  in  regard  to  the  ])ast  conduct  of  Great  Britain.  Why, 
you  might  as  well  tear  the  Treaty  in  pieces  as  to  introduce  and  insist 
upon  any  proposition,  wliether  of  interpretation  or  of  application,  which 
results  in  the  demand  that  the  very  controversy  for  which  they  were 
framed  is  not  really  to  be  governed  by  the  Kules  of  the  Treaty. 

The  concluding  observations  of  this  chapter,  that  the  invitation  to 
other  powers  to  adopt  these  Kules  as  binding  upon  them,  contained  in 
the  Treaty,  should  discourage  a  forced  and  exaggerated  construction  of 
them,  I  assent  to;  not  so  much  upon  the  motive  suggested  as  upon  the 
principle  that  a  forced  and  exaggerated  construction  should  not  be  re- 
sorted to,  upon  either  side,  upon  any  motive  whatever. 

I  now  come  to  the  more  general  chapter  in  the  argument  of  the  learned 
Counsel,  the  Jirst  chapter,  which  presents  under  forty-three  „,,;,„  „rs,,  r. 
sections  a  very  extensive  and  very  comprehensive,  and  cer-  !,';;,'';,'';,',;  Amin,«"l 
tainly  a  very  al^le,  criticism  upon  the  main  Argument  of  the  "'  "'"  L".tea.^iau». 
United  States  upon  "  due  dil'gence,"  and  upon  the  duties  in  regard  to 
which  due  diligence  was  required,  and  in  regard  to  the  means  for  the 
performance  of  those  duties,  and  the  application  of  this  due  diligence 
possessed  by  Great  Britain.  Certainly  these  form  a  very  material  por- 
tion of  the  Argument  of  the  United  States ;  and  that  Argument,  as  I 
•lave  said,  has  been  subjected  to  a  very  extensive  criticism.  Keferring 
the  Tribunal  to  our  A  ^ument  itself  as  furnishing,  at  least,  what  we 
suppose  to  be  a  clear  a  d  intelligible  view  of  our  propositions  of  the 
grounds  upon  which  tl  ay  rest,  of  the  reasoning  which  supports  them^ 


I- 

I 

i 


m 


474 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


m 


•1. 1 
.  I  1 


im--^ 


Bm'' 


of  the  authorities  which  sustain  them,  of  their  applicabilitj^,  and  of  tlie 
result  which  they  lead  to — the  inculpation  of  Great  Britain  in  the  matters 
now  under  judgment — we  shall  yet  think  it  right  to  pass  under  review  a 
few  of  the  general  topics  which  are  considered  in  this  discussion  of  "  due 
diligence." 

The  sections  .i-om  seven  to  sixteen,  (the  earlier  sections  ha\ing  beon 
The  prerogative  of  ahcady  cousidcred,)  are  occupied  with  a  discussion  of  what 
thecro«u.  r^YG  supposed  to  be  the  views  of  the  American  Argument  on 

the  subject  of  prerogative  or  executive  power,  as  distinguished  froju  the 
ordinary  administration  of  authority  through  the  instrumentality  of 
courts  of  justice  and  their  procedure.  Although  we  may  not  pretend 
to  have  as  accurate  views  of  constitutional  questions  pertaining  to  the 
nation  of  Great  Britain,  or  to  the  general  principles  of  her  common  law. 
or  of  the  effect  of  lier  statutory  regulations,  and  of  her  judicial  decisions 
as  the  eminent  Counsel  of  Iler  Britannic  Majesty,  yet  1  think  it  will 
be  found  that  the  criticisms  upon  our  Argument  in  these  resj^ects  aio 
not,  by  any  means,  souiid.  It  is,  of  course,  a  matter  of  the  least  pos- 
sible consecjuence  to  us,  in  any  i)osition  which  we  occupy,  either  as  ii 
nation  before  this  Tribunal  or  as  lawyers  in  our  Argument,  whether  oi 
not  the  sum  of  the  obligations  of  Great  Britain  in  this  behalf  under  tlie 
law  of  nations  was  referred  for  its  execution  to  this  or  that  authoiity 
under  its  constitution,  or  to  this  or  that  ollicial  action  under  its  admin- 
istration. One  object  of  our  Argument  has  been  to  show  that,  if  tlie 
sum  of  these  obligations  was  not  performed,  it  was  a  matter  of  but  little 
importance  to  us  or  to  this  Tribunal,  where,  in  the  distribution  of  admin- 
istrative dutj',  or  where,  in  the  constitutional  disposition  of  authority, 
the  defect,  either  of  power  or  in  the  due  exercise  of  power,  was  found 
to  be  the  guilty  cause  of  the  result.  Yet,  strangely  enough,  when,  iu  a 
certain  section  of  our  Argument,  that  is  laid  down  as  one  iiroposition, 
we  are  accused  by  the  learned  Counsel  of  a  petitio  princlpU,  of  begging 
the  question,  that  the  sum  of  her  obligations  was  not  performed  hy 
Great  Britain. 

With  regard  to  prerogative,  the  learned  Counsel  seems  to  think  that 
the  existence  of  the  supposed  executive  powers  under  the  British  Con- 
stitution, and  which  our  Argument  has  assigned  to  the  prerogative  of 
the  Crown,  savors  of  arbitrary  or  despotic  power.  We  have  no  occa- 
sion to  go  into  the  history  of  the  prerogative  of  the  British  Crown,  or 
to  consider  through  what  modifications  it  has  reached  its  present  con- 
dition. When  a  free  nation  like  Great  Britain  assigns  certain  functions 
to  be  executed  by  the  Crown,  there  does  not  seem  to  be  any  danger  to 
its  liberties  from  that  distribution  of  authority,  when  we  remember  that 
Parliament  has  full  power  to  arrange,  modify,  or  curtail  the  prerogative 
at  its  pleasure,  and  when  every  instrument  of  the  Crown,  in  the  exer- 
cise of  the  prerogative,  is  subject  to  impeachment  for  its  abuse. 

The  prerogative  is  trusted  under  the  British  Constitution  with  all  the  in- 
ternational intercourse  of  pe.ace  and  war,  with  all  the  duties  and  responsihil 
ities  of  changing  peace  to  war,  or  war  to  ])eace,  and  also  in  regard  to  all 
the  international  obligations  and  resjwnsibilities  which  grow  out  of  a 
declared  or  actual  situation  of  neutrality  when  hostilities  are  pendinft 
between  other  nations.  Of  that  general  proposition  there  seems  to  be 
no  dispute.  But  it  is  alleged  that  there  is  a  strange  confusion  of  ideas 
in  our  minds  and  iu  our  Argument,  in  not  drawing  the  distinction  be- 
tween what  is  thus  properly  ascribable  to  extraterritoriality  or  ad  extra 
administration,  what  deals  with  outw'ard  relations  and  what  has  to  do 
with  persons  and  property  within  the  kingdom.  This  prerogative,  it  is 
•insisted,  gives  no  power  over  persons  and  property  within  the  kingdom 


MR.    EVART8     HUl'PLEMENTAL    ARGUMENT. 


475 


^"Wi 


■W 


of  Great  J3ritain,  and  it  is  fnrtlier  iusi.steu  tluit  the  roreigu-Eulistmeut 
Act  was  the  whole  measure  of  the  authority  of  the  Government,  and 
the  whole  measure,  therefore,  of  its  duty,  icithin  the  Tilngdom.  It  is  said 
the  Government  had  uo  power  by  prerogative  to  make  that  a  crime  in 
the  kingdom  wliieh  is  not  a  crime  by  the  law,  or  of  punishing  a  crime 
la  any  other  manner  than  through  the  courts  of  justice.  This  of  course 
is  sound,  as  well  as  familiar,  law.  ]iut  the  interesting  question  is, 
whother  the  nation  is  sui)plied  with  adecpiate  legislation,  if  that  is  to 
furnish  the  only  means  for  the  exercise  of  international  duty.  If  it  is 
not  so  supplied,  that  is  a  fault  as  between  the  two  nations;  if  it  is  so 
supplied,  and  the  powers  are  not  ])roi)erly  exercised,  that  is  e«iually  a 
fault  as  between  the  two  natit)ns.  The  course  of  the  American  Argu- 
ment is  to  show  that,  either  on  the  one  or  the  other  of  the  horns  of  this 
dilemma,  the  actual  ct>ndu('t  of  the  Uritish  (iovernment  must  be  im- 
paled. 

AVe  are  instructed  in  this  special  Argument  as  to  wha<^,  in  the  opinion 
of  the  eminent  Counsel,  belongs  to  ]>rerogative,  ai'.d  what  to  Judicial 
action  under  the  statute:  but  we  find  no  limitation  of  what  is  in  the 
power  of  Parliament,  or  in  the  ])ower  of  adnjinistration,  if  adequate 
parliamentary  provision  be  made  for  its  exercise.  JJut  all  this  course 
of  Argument,  ingenious,  subtle,  and  intricate  as  it  is,  finally  brings  the 
omiuent  Counsel  around  to  this  poi'it,  that  by  the  common  law  of  Eng- 
land within  the  realm,  there  is  power  in  the  Crown  to  use  all  the  execu- 
tive authority  of  the  nation,  civil  and  military,  to  prevent  a  hostile  act 
towards  another  nation  within  that  territory.  That  is  but  another 
uaiue  for  prerogative,  there  is  no  statute  on  that  subject,  and  no  writ 
from  any  Court  can  issue  to  accomplish  that  object. 

If  this  is  undoubtedly  part  of  the  common  law  of  England,  as  the 
learned  Counsel  states,  the  argument  here  turns  upon  nothing  else  but 
the  old  controversy  between  us,  whether  th'^se  acts  were  in  tlie  nature 
of  hostile  acts,  under  t!ie  condemnation  of  the  law  of  nations  as  such, 
that  ought  to  have  been  intercepted  by  the  exercise  of  prerogative,  or 
by  the  power  of  the  Crown  at  common  law,  whichever  you  choose  to 
call  it.  The  object  of  all  the  discussion  of  the  learned  Counsel  is  con- 
tinually to  bring  it  back  to  the  point  that  within  the  kingdom  of  Great 
Britain,  the  roreign-Eulistment  Act  was  the  sole  authority  for  action  and 
prevention,  and  if  these  vessels  were  reasonably  proceeded  against, 
imder  the  requirements  of  administrative  dutj'  in  enforcing  the  Foreign- 
Enlistment  Act,  as  against  persons  and  property  for  confiscation  or  for 
punishment,  that  was  all  that  was  necessary  or  proper. 

Sir  Alexander  Cockburn.  "Am  I  to  understand  you  as  a  lawyer 
to  say  that  it  was  competent  for  the  authorities  at  the  port  whence  such 
a  vessel  e8ca])ed  to  order  out  troops  and  command  them  to  fire  T- 

Mr.  EvARTS.  That  will  depend  upon  the  question  whether  that  was 
the  only  way  to  compel  her  to  an  observance. 

Sir  Alexander  Cookbt  rn.  "  I  put  the  question,  to  you  in  the  con- 
crete."' 

Mr.  EvARTS.  That  would  draw  me  to  another  subject,  viz,  a  discussion 
of  the  facts.  But  1  will  say  that  it  depends  upon  whether  the  act  she 
is  engaged  in  committing  comes  within  the  category  of  hostile  acts. 

Sir  Alexander  Cockburn.  "  But  taking  this  case,  and  laying  aside 
the  question  of  due  diligence.  The  vessel  is  going  out  of  the  Mersey. 
l)o  you  say  as  a  lawyer  that  she  should  bt.  tired  upon  f 

Mr.  EvARTS.  Under  proper  circumstances,  yes. 

Sir  Alexander  Cockburn.  "  But  I  put  the  circumstances." 

Mr.  EvARTS.  You  must  give  me  the  attending  circumstances  that 


'«*-' 


M^ 


vi;- 

l^i'V 

f 

^i 

■  1 

li'i 

rVii. 

'  ■■-: 

!.;^. 

tr 

rr^i- 

1 

I'! 


476 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


'Ii^ 


.!   *,'  ' 


lii 


If'"?*'' 

ii  ^ 


show  such  an  act  of  force  is  necessary  to  secure  the  execution  of  tlie 
public  authority.  You  do  not  put  in  the  element  that  that  is  the  only 
way  to  bring  such  a  vessel  to.    If  you  add  that  element,  then  I  say  yes. 

Sir  Alexander  Cockburn.  "  She  is  goin,?  out  of  the  port.  They 
know  she  is  trying  to  escape  from  the  port.  l>o  you,  I  again  ask— do 
you,  as  a  Lawyer,  say  that  it  would  be  competent  for  the  authorities 
without  a  warrant,  simply  because  this  is  a  violation  of  tlie  law,  to  fire 
on  that  vessel  F 

Mr.  EvARTS.  Certainly,  after  the  usual  preliiuinaries  of  hailing  her, 
and  firing  across  her  bows,  to  bring  her  to.  Finalljs  if  she  insists  on 
proceeding  on  her  way,  and  thus  raises  the  issue  of  escape  from  the 
Government,  or  forcible  arrest  by  the  Government,  you  are  to  fire  into 
her.  It  becomes  a  question  whether  the  Government  is  to  surrender 
to  the  ship,  or  the  ship  to  the  Government.  Of  course,  the  latvfulnesH 
of  this  action  depends  upon  the  question  whether  the  act  committed  is, 
under  the  law  of  nations,  a  violation  of  the  neutrality  of  the  territory^ 
and  a  hostile  act,  as  it  is  conceded  throughout  this  argument,  the  eva- 
sion of  an  armed  ship  would  be. 

In  section  sixteen  of  this  argument  you  will  find  the  statement  of  the 
learned  Counsel  on  this  subject  of  the  executive  powers  of  the  British 
Government  in  this  behalf: 

It  is  impossible  too  pointedly  to  deny  the  truth  of  this  avssuinption,  or  too  pointedly 
to  state  that,  if  any  military  or  naval  expeditious,  or  any  other  acts  or  operations  ol 
war,  agaihst  the  United  States,  in  the  true  and  proper  sense  of  these  words,  had  been 
attempted  within  British  territory,  it  would  not  have  been  necessary  for  the  IJritisli 
Government,  either  to  suspend  the  haheas-corpiis  act,  or  to  rely  on  the  Foreign-Eulistiiieiit 
Act,  in  order  to  enable  it  to  intercept  and  prevent  by  force  such  expeditions,  or  suiii 
acts  or  operations  of  war.  The  whole  civil  police,  and  the  whole  naval  and  militaiy 
forces  of  the  British  Crown,  would  have  been  lawfully  available  to  the  Executive  Guv- 
ernment,  iij  the  common  laiv  of  the  realm,  for  the  preveutlou  of  such  proceedinj^s. 

This  is  the  law  of  England  as  understood  by  the  eminent  Counsel 
who  has  presented  this  argument.  Given  the  facts  that  make  the  eva- 
sion from  the  port  of  Liverpool  of  the  vess  '  proposed  a  violation  ot 
the  law  of  nations — because  it  is  a  hostile  act  ugaiiist  the  United  States, 
and  exposes  Great  Britain  to  'res[)onsibility  tor  the  violation  of  iieii 
trality — then,  the  situation  has  arisen,  in  the  failure  of  civil  means,  tlie 
failure  of  remonstrance,  of  arrest  and  of  bringing  to,  for  firing  into  the 
vessel.  For  certainlj^  if  we  have  authority  to  stop,  we  are  not  to  have 
that  authority  met  and  frustrated  by  the  persistence  of  violent  resist 
ance  to  it. 

It  certainly  makes  very  little  difterence  to  us  whether  this  authority  ot 
the  executive  to  use  fll  its  forces  for  the  actual  prevention  of  the  occur- 
rence of  these  hostile  transactions  within  the  realm  is  lodged  in  what 
he  calls  the  common  law  of  Great  Britain,  or  is  found,  as  we  suppose, 
in  the  prerogative  of  the  Crown.  Nor  do  I  understand  this  argiunent, 
throughout,  to  quarrel  with  the  proposition  that  an  armed  ship  that 
should  undertake  to  proceed  out  of  the  port  of  Liverpool  would  be  ex- 
posed to  the  exercise  of  that  power ;  and>  of  course,  if  the  proper  cir 
cumstances  arose,  even  to  the  extent  to  which  it  has  been  pushed  in 
answer  to  the  questions  put  to  me  by  one  of  the  members  of  the  Tri- 
bunal. For,  if  the  Queen  is  to  use  all  her  power  to  prevent  a  hostile 
act,  and  if  an  armed  vessel  is,  in  its  evasion  of  a  port,  committing  a 
hostile  act,  that  power  can  be  exerted  to  the  point  of  firing  into  such 


TIP 


rs. 

itiou  of  the 
b  is  the  only 
en  I  say  yes. 
port.  They 
;aiu  ask — do 
}  authorities 
e  law,  to  tire 

hailing  her, 
he  insists  oii 
vpe  from  tlie 
[•e  to  fire  into 

to  surrender 
he  lawfuhu'sn 
committed  is, 
'  the  territory, 
iient,  the  eva- 

itement  of  tlie 
of  the  British 


MR.    EVARTS'    SUPPLEMENTAL   ARGUMENT. 


477 


jveign-Enlisti 
peilitiourt,  or  sucli 
aval  tuul  military 
he  Executive  Guv- 
roceetUiiK'^- 


vessel,  if  necessary,  as  well  as  of  merely  exerting  the  slightest  touch, 
if  that  proves  snflicient  to  accomplish  the  object.^ 

Sections  seventeen  to  twenty-live  are  occupied  with  a  discussion  con- 
cerning the  preiientive  powers  and  punitive  powers  under  the 
legislation  of  Great  Britain  as  compared  with  that  of  the  mt'[^T,mwHr"ofe^l. 
United  States.  Wliile  there  is  here  a  denial  that  the  Brit-  '"""""""• 
ish  Government  ever  put  itself  upon  a  necessary  confinement  to  the 
punitive  powers  of  that  Act,  or  that  that  Act  contains  no  preventive 
power,  or  that  it  contains  not  so  much  as  the  Act  of  the  United  States, 
still,  after  all,  I  find  no  progress  made  beyond  this  :  that  the  preventive 
powers,  thus  relied  upon  and  thus  assei'ted,  as  having  origin  under,  and 
by  virtue  of,  the  act,  are  confined  to  the  prevention  that  springs  out  of 
the  ability  to  punish,  or  out  of  the  mode  in  \vhich  the  power  to  punish  is 
exercised. 

Nor  will  the  text  of  the  Foreign  Eidistment  Act  furnish  any  evidence 
that  it  provides  any  i)ower  for  the  prereiition  by  law  of  the  evasion  oi 
such  a  vessel,  except  in  the  form  ot  prosecution  ibr  confiscation.,  which 
is  one  of  the  modes  of  punishment.  And  when  this  Foreign  Enlistment 
Act  was  passed  in  ISlO,  it  was  thus  left  unaccompanied  by  any  execu- 
tive power  of  interception  and  prevention,  for  the  reason,  as  shown  in 
the  debates,  that  this  interceptive  and  preventive  power  resides'  in  the 
prerogative  of  the  Crown,  and  could  be  exercised  by  it.  This  will  be 
seen  from  the  debates  which  we  have  appended  in  Note  B  to  our  Argu- 
ment. 

In  comparing  that  law  with  the  preceding  act  passed  in  1818  by  the 
American  Government,  the  debates  in  Parliament  gave  as  the  reason 
for  the  lodgment  of  this  preventive  power  in  the  Executiv^e  of  the 
United  States,  by  the  act  of  Congress,  and  for  its  not  being  necessary 
to  lodge  a  similar  preventive  power  in  the  British  Crown,  that  there 
was  no  prerogative  in  America,  while  there  was  in  Great  Britain. 

To  be  sure,  when  one  of  the  punishments  provided  by  law  is  a  pro- 
ceeding in  rem  for  confiscation  of  the  vessel,  if  you  serve  your  process 
at  a  time  and  under  circumstances  to  prevent  a  departure  of  the  vessel 
on  its  illegal  errand,  you  do  ettect  a  detention.  But  that  is  all.  The 
trouble  with  that  detention  is,  that  it  is  only  a  detention  of  process,  to 

'  It  would  seem  to  be  quite  in  accordance  with  the  ordinary  course  of  Governments 
in  dealing  with  armed  (or  merchant)  ships,  that  refuse  obedience  to  a  peaceful  sam- 
raous  of  sovereignty  to  submit  to  its  autliority,  to  enforce  that  summons  by  firing  into 
the  contumacious  ship. 

In  "  Phillimore,"  vol.  iii,  pp.  231-4,  will  be  found  the  orders  of  the  British  Govern- 
ment in  the  matter  of  the  "  Terceira  Expedition,"  and  an  account  of  their  execulaon. 
f'aptain  Walpole  "  fired  two  shots,  to  bring  them  to,  but  they  continued  their  course. 
The  vessel,  on  board  of  whicii  was  Sahlanha,  although  now  within  point  blank  range 
of  the  Ranger's  guns,  seemed  determined  to  push  in  at  all  hazards.  To  prevent  him 
from  effecting  Ids  object,  Captain  Walpole  was  under  the  necessity  of  firing  a  shot  at  the 
vessel,  which  killed  one  man  and  wounded  another."    (P.  232.) 

The  eighth  article  of  the  Biazilian  Circular  of  June  23,  1863,  provides  for  the  neces- 
sary exhibition  of  force,  as  follows  : 

"8.  Finally,  force  shall  be  used  (and  in  the  absence  or  insufficiency  of  this,  a  solemn 
and  earnest  protest  shall  be  made)  against  a  belligerent  who,  on  being  aotified  and 
warned,  does  not  desint  froM  the  violation  of  the  neutralitij  of  the  Emjnre.  Forts  and 
vessels  of  war  shall  be  ordered  to  fire  on  a  belligerent,  who  shall,"  &c.  (7  Am.  App., 
p.  113.) 

Indeed,  there  is  no  alternative,  unless  the  solution  of  the  difficulty  laid  dow'a  by 
foggberry  is  preferred : 

"  UooBEUUV.    You  are  to  bid  any  man  stand  in  the  prince's  name. 

"  Watch.    How  if  he  will  not  stand  f 

"  DftouKUUY.  Why,  then,  take  no  note  of  him,  but  let  him  g ) ;  and  presently  call 
the  rust  of  the  watch  together,  and  thank  God  you  are  rid  of  a  knave." 

[Shakespkare,  Much  Ado  about  Nothing,  Act  iii,  Sc.  3. 


■.,!♦  ■ 

■  M 

■  f. 

■■■■ ' 

■^&- 

1- 

■'    ! 


i  i 


I'  • 


J 


■  t 


w  ■ 

I   ! 

i 
I 

i   '. 


1     ".«.:: 


14  '     I 

1^ 


It 


478 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


brinjj  to  issue  and  to  trial  a  question  of  private  right,  a  confiscation  of 
the  ship,  which  is  to  be  governed  by  all  the  rnles  of  law  and  evideuce^ 
which  are  attendant  upon  the  exercise  of  authority  by  the  Crown,  in 
taking  away  the  property  of  the  subject. 

It  never  was  of  any  practical  importance  to  the  United  States, 
whether  the  British  Government  confiscated  a  ship  or  imprisoned  the 
malefactors,  except  so  far  as  this  might  indicate  the  feelings  and  sym- 
pathy of  that  nation.  All  we  wished  was,  that  the  Government  should 
prevent  these  vessels  from  going  out.  It  was  not  a  question  with  us, 
whether  they  punished  this  or  that  man,  or  insisted  upon  this  or 
that  confiscation,  provided  the  interception  of  the  cruisers  was  ef- 
fected. When,  therefore,  we  claimed  under  the  Foreign  Enlistment 
Act  or  otherwise,  that  these  vessels  should  be  seized  and  detained,  one 
of  the  forms  of  punitive  recourse  under  that  act  would  have  operated  a 
detention,  if  applied  at  the  proper  time  and  under  the  proper  circumstance^i. 
Confiscation  had  its  place  whenever  the  vessel  was  in  the  power  of  the 
Government ;  but  it  was  only  by  interception  of  the  enterprise  that  we 
were  to  be  benefited.  That  interception,  by  some  means  or  other,  we 
had  a  right  to ;  and  if  your  law,  if  your  constitution,  had  so  arranged 
matters  that  it  could  not  be  had,  except  upon  the  ordinary  process,  the 
ordinary  motives,  the  ordinary  evidence,  and  the  ordinary  duty  by 
which  confiscation  of  private  property  was  obtained,  and  that  provisioit 
was  not  adequate  to  our  rights,  then  our  argument  is  that  your  law- 
needed  improvement. 

But  it  is  said  that  nothing  in  the  conduct  of  Great  Britain,  of  practi 
cal  importance  to  the  United  States,  turned  upon  the  question  whether 
the  British  law,  the  Foreign  Eidistment  Act,  was  applicable  only  to  an 
a/rmed  vessel,  or  was  applicable  to  a  vessel  that  sh  juld  go  out  merely 
prepared  to  take  its  armament.  How  is  it  that  nothing  turned  npoii 
that  question  ?  It  is  so  said  because,  as  the  learned  Counsel  couteuds, 
the  Government  adopted  the  construction  that  the  statute  did  embrace 
the  case  of  a  vessel  unarmed.  But  take  the  case  of  the  Alabama,  or  the 
Florida,  for  an  illustration,  and  see  how  this  pretension  is  justified  by 
the  facts.  What  occasioned  the  debates  of  administrative  officers  ? 
What  raised  the  difficulties  and  doubts  of  custom-house  and  other  otB- 
cials,  except  that  the  vessel  was  not  armed,  when,  as  regards  both  of 
these  vessels,  the  Executive  Government  had  given  orders  that  they 
should  be  watched?  Watched!  watched,  indeed!  as  they  were  until 
they  went  out.  They  were  put  under  the  eye  of  a  watching  supervision^ 
to  have  it  known  whether  an  armament  went  on  board,  in  order  that 
tlien  they  might  be  reported,  and,  it  may  be,  intercepted.  The  whole 
administrative  question  of  the  practical  application  of  authority  by  the 
British  Government,  in  our  aid,  for  the  interception  of  these  vessels, 
turned  upon  the  circumstance  of  whether  the  vessel  was  armed  or  was 
not  armed.  Under  the  administration  of  that  question,  they  went  out 
without  armaments,  not  wishing  to  be  stopped,  and,  by  pre-arrang:e- 
ment,  took  their  armaments  from  tenders  that  subs.'qiiently  brought 
them,  which,  also,  coidd  not  be  stopped. 

Certain  observations  of  Baron  Bramwell  are  quoted  by  the  learned 
Counsel  in  this  connection,  which  are  useful  to  us  as  illustratinji  the 
turning  point  in  the  question  as  to  armed  and  unarmed  vessels.  They 
are  to  this  effect,  and  exhibit  the  British  doctrine : 

A  vessel  fitted  to  receive  her  armatncnt  and  armed,  is  a  vessel 
that  should  be  stopped  under  an  international  duty.  This  amounts  to 
an  act  of  proximate  hostility  which  a  neutral  is  bouiul  to  arrest. 
Baron  Bramwell  held  that  the  emission  of  a  vessel  armed  is,  uii- 


IP 


'S. 

nflscatiou  of 
id  evideuce^ 
le  Crown,  in 

ited  States. 
prisoned  the 
gs  and  sym- 
iment  slionld 
tion  with  w% 
upon  this  or 
isera  was  ef- 
I  Enlistment 
letained,  one 
re  operated  a 
circuniHtancefi. 
power  of  the 
rprise  that  we 
or  other,  we 
\  80  arranged 
y  process,  the 
iary  duty  by 
that  provision 
that  your  law- 
bain,  of  practl 
istion  whether 
ible  only  to  an 
go  out  merely 
r  turned  upon 
lusel  contends, 
e  did  embrace 
.labama,  or  the 
[is  justified  by 
iitive  officers? 
and  other  otli- 
Igards  both  ot 
llers  that  they 
jy  were  until 
lig  supervision, 
in  order  that 
[l.    The  whole 
ithority  by  the 
these  vessels, 
armed  or  was 
they  went  ont 
y  pre-arran<jo- 
[ently  brought 

))y  the  learned 
lu'ustratiiiji'  the 
Vessels,    'i'l^'y 

Id,  is  a  vessel 
Biis  amounts  to 
fund  to  arrest. 
Uirmed  is,  ^"''' 


MR.    EVARTS     SUPPLEMENTAL   ARGUMENT. 


47^ 


doubtedly,  a 

of  nations. 

neutral  port,  and  sent 

in  that    condition,  he 


hostile    expedition    within  the    meaning    of    die    law 

But  a  vessel  lifted  to  receive   lier  armament  in    the 

out  of   that  port    by    the    belligerent    only 

held  is    not    an    enterprise   in   violation    of 


the  law  of  Tiations,  and  is  not  a  hostile  expedition  in  the  sense 
of  that  law.  By  consequence,  Baron  Bramwell  argued,  nothing  in  such 
an  enterprise  of  a  belligerent  from  a  neutral  port  calls  for  the  exorcise 
of  authority  on  the  part  of  the  neutral,  either  by  law  or  by  executive 
interference,  and,  until  the  armament  gets  on  board,  there  is  nothing 
to  bring  the  case  within  the  province  of  internationdl  proscription  and 
of  international  responsibility.  It  was  then,  he  argues,  only  a  question 
for  Great  Britain  whether  the  provisions  of  the  Foreign  Enlistment  Act 
can  touch  such  a  vessel,  and  the  only  question  for  the  British  Govern- 
ment was  as  towards  the  United  States,  have  they  done  their  duty  to 
themselves  in  the  enforcement  of  the  municipal  law,  which  involves  a 
qiiest'ou  of  international  responsibility  to  the  United  States?  We  in- 
sist, therefore,  that  so  far  from  nothing  practical  turning  upon  this  dis- 
tinction, all  the  doubts  and  difficulties  turn  npon  it,  especially  in  con- 
nection with  the  ancillary  proposition  that  these  vessels  could  be  pro- 
vided, by  means  of  their  tenders,  with  armaments,  without  any  account- 
ability for  the  complete  hostile  expedition.^ 

It  is  said  that  we  can  draw  no  argument  as  to  the  deficiency  of  their 
old  Act,  from  the  improved  provisions  of  the  new  Act  of  1870.  AVhy 
not!  When  we  say  that  your  Act  of  1819  was  not  adequate  to  the  sit- 
uation, and  that,  if  you  had  no  prerogative  to  supply  its  defects,  you 
should  have  supplied  them  by  Act  of  Parliament — that  you  should  have 
furnished  by  legislation  the  means  for  the  performance  of  a  duty  which 
required  you  to  prevent  the  commission  of  the  acts  which  we  complain 
of— it  is  certainly  competent  for  us  to  resort  to  the  fact  that,  when  our 
war  was  over,  from  thenceforth,  movements  were  made  toward  the 
amendment  of  your  law,  and  that,  when  the  late  war  on  the  continent 
of  Europe  opened,  your  new  Act  was  immediately  passed  containing  all 
the  present  provisions  of  practical  executive  interception  of  such  illegal 
enterprises — it  is,  I  say,  competent  for  us  to  refer  to  all  this  as  a  strong 
lis  well  as  fair  argument,  to  show  that,  even  in  the  opinion  of  the  British 
Parliament,  the  old  Act  was  not  adequate  to  the  performance  of  the 
international  duties  of  Great  Britain  to  the  United  States. 

Sections  27  to  30  of  the  special  argument  are  occupied  with  a  discus- 
sion of  that  part  of  our  Argument  which  alleges,  as  want  of  Thefahnx-mcrpnt 
due  diligence,  the  entire  failure  of  Great  Britain  to  have  an  "v''r/;„„VKm'a?'i'r!r 
aetive,  eflfective,  and  spontaneous  investigation,  scrutiny,  "^''"S" 
report,  and  interceptive  prevention  of  enterprises  of  this  kind.  Well,. 
the  comments  upon  this  are  of  two  kinds  :  first,  concerning  the  question, 
under  a  somewhat  prolonged  discussion  of  facts,  whether  the  Govern- 
ment did  or  did  not  do  this,  that,  or  the  other  thing  ;^  and,  then,  con 

•  Mr.  Tlieodore  Ortolau,  iu  a  late  edition  of  his  "  Diplomatio  tie  la  iiier,"  tome  ii,  says : 
"Nons  nous  rattacberons,  pour  ri5.sou(lre  on  droit  des  {jeiis  los  ditUcnltos  quo  prosente 

ettte  iiouvelle  situation,  a  un  principo  universellonieut  otaldi,  qni  so  ioruinle  en  ce  pen 
'le  mots :  'Iuviolabillt6  du  territoiro  neutre.'  Cetto  iuviolabilitd  est  un  droit  pour 
1' tut  ueutro,  dout  le  territoire  ne  doit  i)a8  Hir  atteint  par  los  faits  do  guerre,  uiais  elle 
'iiipost',  auHsi.a  ce  nienie  etat  neutre,  uue  i^troite  obligation,  celle  de  no  pas  perinetire, 
•"t'lle  (lY'iiiiieclKir,  activenient  au  bosoin,  I'eniploi  de  ce  territoire  par  Tuue  des  parties, 
"11  au  ])rolit  de  Tune  des  parties  belligerautes,  daus  uu  but  hostile  a  I'autre  partie." — 
Oi«e  of  the  U.  S.,  p.  182. 

•  It  does  not  seem  ])rofitable  to  go  into  a  minute  examination  of  tlie  proofs  before 
'lie  Tribunal  to  establish  the  propositions  of  our  Argumeut  specially  controverted  iu 
wi'tioiis  'iU  and  'W  of  the  present  argument  of  the  eminent  Counsel.  Although  the  let- 
'Tof  Earl  Russell,  (luoted  by  the  learned  Counsel,  does,  incidentally,  refer  to  certain. 


I- 


■,t*  ■     '«' 


480 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


I  ■    ■ 


i     I 


cerning  the  more  general  question,  as  to  whether  the  Kules  of  this  Treaty 
call  upon  this  Tribunal  to  inquire  into  any  such  deficiency  of  diligence 
which  was  not  applicable  to  the  case  of  a  vessel  respecting  which  tlie 
British  Government  "had  reasonable  ground  to  believe "  that  a  viola- 
tion of  the  law  was  meditated. 

Our  answer  to  this  latter  question  is,  that      j  Rules  together,  in  their 

Thp  "Hup  Hiiii   ^^^^^  construction,  require  t'.o  upplicatiou  of  due  <liligence 

ge^'p  •  r"mr>-'\  ilv  (particularfy  under  the  special  emphasis  of  the  third  Itule) 

!:pmJ".r,'i,'r'"cv'.-m'  u  "  to  prcvcut "  thc  occurrence  of  any  of  the  infractions  of  the 

law  of  nations  proscribed  by  the  Kules. 

There  are  two  propositions  in  these  llules.  Certain  things  are  as- 
signed as  violations  of  the  law  of  nations,  and  as  involving  a  duty  on 
thc  part  of  a  neutral  Government  to  prevent  them ;  and  besides  in  ami 
toward  preventing  them,  it  is  its  duty  to  use  due  diligence.  In  regard 
to  every  class  of  alleged  infractions  of  these  liules,  there  comes  to  be 
an  inquiry,  first,  whether,  in  the  circumstances  and  facts  which  are  as- 
signed, the  alleged  infractions  are  a  violation  of  any  of  the  duties  under 
the  law  of  nations  as  prescribed  by  those  llules.  If  not,  they  are  dis- 
missed from  your  consideration.  But  if  they  are  so  found,  then  these 
Rules,  by  their  own  vigor,  become  applicable  to  the  situation,  and  then 
comes  the  inquiry  whether  Great  Britain  did,  in  fact,  use  due  diligence 
to  prevent  the  proscribed  infractions.  It  is  under  the  sections  now 
under  review  that  the  learned  Counsel  suggests  whether  it  is  supposed 
that  this  general  requirement  of  the  use  of  due  diligence  by  Great 
Britain  is  intended  to  cover  the  cases  of  vessels  like  the  Shenandoah 
and  the  Georgia,  (which  it  is  alleged  the  British  Government  had  uo 
reasonable  ground  to  believe  were  meditating  or  preparing  an  evasion 
of  the  laws  or  a  violation  of  the  duties  of  Great  Britain,)  or  the  cases 
of  these  tenders  that  sui)plied  the  Georgia  and  the  Shenandoah  and 
the  Florida  and  the  Alabama  with  their  armaments  and  munitions  of 
war — it  is  under  these  sections  that  this  discussion  arises.  The  answer 
on  our  part  to  this  suggestion  is,  that  the  general  means  of  diligence  to 
keep  the  Government  informed  of  facts  an'i  enable  it  to  judge  whether 
there  was  "  reasonable  ground  to  believe"  in  any  given  case,  and  thus 
enable  it  to  he  prepared  to  intercept  the  illegal  enterprise,  are  required 
in  cases  that  the  Rules  proscribe  as  infractions  of  neutrality. 

I  will  agree  that  under  the  first  clause  of  the  first  Rule  the  duty  is 
applied  to  a  vessel  concerning  which  the  Government  "  shall  have  rea 
sonable  ground  to  believe,"  &c.  Under  the  second  clause  of  the  lirst 
Rule,  this  phrase  is  omitted,  and  the  question  of  "  reasonable  ground 
to  believe"  forms  only  an  element  in  the  more  general  question  of  "due 
diligence."  Under  the  second  Rule  also,  the  whole  subject  of  the  use 
of  the  neutral  ports  and  waters  as  a  base  of  naval  operations  is  open ; 
and,  if  there  has  been  a  defect  of  diligence  in  providing  the  officers  ot 
Great  Britain  with  the  means  of  knowledge  and  the  means  of  action,  to 
prevent  such  use  of  its  ports  and  waters  as  a  base  of  operations,  why. 
then,  Great  Britain  is  at  fault  in  not  having  used  due  diligence  to  pre 
vent  such  use  of  its  ports  antl  waters.  That  is  our  argument ;  and  it  j 
seems  to  us  it  is  a  sound  argument.  It  is  very  strange  if  it  is  not,  autl 
if  the  duty  of  a  government  to  use  due  diligence  to  prevent  its  ports 

iustructious  having  been  given  to  subordinate  otticials,  yet  we  look  in  vain,  thrDiigL  j 
the  proofs  of  the  British  Government,  for  the  text  or  date  or  circulation  of  these  in- 
stnictions.    As  for  the  rest,  we  find  nothing  in  the  instances  cited,  in  which  apefiilif  i 
information  happened  to  be  given  in  regard  to  this  or  that  veasel  or  euterprise,  which 
contravenes  our  general  propositions  of  fact,  in  this  behalf,  or  t;*e  influence  of  waiitoi 
due  diligence  on  the  part  of  the  British  Government,  which  we  have  drawn  from  those  j 
facts. 


is- 


rs. 

f  this  Tieaty 

of  dilisence 

i{r  which  the 

that  a  viola- 

'ther,  in  their 
due  diligence 
e  third  Ilule) 
ictions  of  the 

hings  are  as- 
ing  a  duty  on 
besides  in  ami 
3e.    In  regard 
■e  comes  to  be 
which  are  as- 
le  duties  under 
,  they  are  dis- 
nd,  theu  these 
ition,  and  theu 
e  due  diligence 
e  sections  now 
p  it  is  supposed 
;ence  by  Great 
le  Shenandoah 
jrument  had  no 
ring  an  evasion 
Q,)  or  the  cases 
Ihenaudoah  and 
id  munitions  of 
!S.    The  answer 
of  diligence  to 
judge  whether 
'case,  and  thus 
ie,  are  required 

.ility. 

[lule  the  duty  IS 
shall  have  rea- 
,use  of  the  lirst 
souable  ground 

[lestionof  "due 
ibject  of  the  use 
rations  is  open ; 
g  the  officers  ot 
lus  of  action,  to 
.perations,  why. 
fiUigence  to  pre 
Qumeut ;  and  it 
'if  it  is  not,  aud 
jrevent  its  ports 

Illation  of  these  in] 
Id,  in  which  a\>m}i( 
Ir  enterprise,  wlucli 
Influence  of  waut  oil 
>  drawn  from  t\io^ 


MR.    EVARTS'    Sl'ITLEMENTAL    ARCil'MENT 


4S1 


('()nil':iii-rtit  fi  f 
twrin  llii'  -Intiitf 
iirilii'  l\»"  n:itio:i-. 


and  waters  from  being  used  as  a  base  of  naval  operations  does  not 
include  the  use  of  due  diligence  to  ascertain  whether  they  were  being, 
or  were  to  be,  so  used. 

It  was  a  fault  not  to  use  due  diligence  to  prevei'.t  the  ports  and  waters 
of  Great  IJritain  from  being  used  as  a  base  of  naval  operations,  or  for 
the  augmentation  of  force,  or  the  recruitment  of  men.  And  to  admit 
that  it  was  a  fault,  in  any  case,  not  to  act  where  the  Government  had 
cause  to  believe  that  there  was  to  be  a  violation  of  law,  and  yet  to  claim 
that  it  was  no  fault  for  the  Government  to  be  guilty  of  negligence  in 
not  procuring  intelligence  and  information  which  might  give  a  ri'ason- 
iible  ground  to  believe,  seems  to  me  absurd. 

This,  indeed,  would  be  to  stamp  the  lesser  negligence,  of  not  applying 
line  diligence  in  a  particular  case  when  there  was  "reasonable  ground 
to  believe,*'  as  a  fault,  entailing  responsibility  upon  a  neutral  Govern- 
ment, and  to  excuse  the  same  Government  for  the  systematic  want  of 
due  diligence  Avhich,  through  indifference  to  duty  and  Aoluntary  ignor- 
ance, did  not  allow  itself  to  be  placed  in  a  position  to  judge  whether  the 
iironnd  of  belief  was  reasonable,  or  whether  there  was  avy  ground  at 
;dl  for  its  action.  The  lesser  fault  infers  that  the  same  or  greater  re- 
sponsibility is  imputable  to  the  greater  fault. 

The  sections  of  the  special  Argument  of  the  learned  Counsel  which  are 
occupied  with  a  comparison  between  the  practical  efticiency  of 
tbe  American  and  of  the  English  Acts,  and  in  wh'  the 
propositions  of  our  Argument,  in  this  regard,  are  quesiioned 
and  commented  upon,  will  be  replied  to  by  my  learned  associate,  Mr. 
Cashing,  in  an  argument  which  he  will  present  to  the  Tribunal.  It  is 
enough  for  me  to  repeat  here  the  observation  of  our  Argument,  that 
tbe  true  measure  of  tlie  vigor  of  an  act  is  its  Judicial  interpretation  and 
Its  practical  execution.  AVe  do  not  intend  to  allow  ourselves  to  be  in- 
volved in  discussions  as  to  the  jn'opriety  of  this  or  that  construction  of 
the  Engli.sh  act  which  reduced  its  power.  The  question  with  us  is,  what 
were  the  practical  interpretation  and  exercise  of  the  powers  of  that  act, 
•'comi)ared  with  the  practical  interpretation  and  exercise  of  the  powers 
of  tbe  Neutrality  Act  of  the  United  States  ? 
The  propositions  of  our  Argument  seem  to  us  untouched  by  any  of 
tlie  criticisms  which  the  learned  Counsel  has  applied  to  them.  We, 
lijthtly  or  Avrongly,  have  interpreted  our  act,  from  its  first  enactment  to 
present  time,  as  giving  authority  to  the  Executive  of  the  United 
[■itates  to  ini:erce[)t,  by  direct  exercise  of  power,  all  these  prohibited  eu- 
tirprises  at  any  stage  at  which  he  can  lay  his  hands  upon  them,  for  the 
I  parpose  of  their  prevention.  The  correspondence  produced  in  our  jiroofs, 
allowing  the  action  of  the  PLxecutive  Government  on  all  the  occasions 
I  in  which  this  statute  has  been  required  to  be  enforced,  will  indicate  that, 
1  Whether  it  has  been  successful  or  not  in  the  execution  of  the  duty,  the 
•ioverument  has  recognized  the  duty,  the  Executive  has  undertaken  it, 
hud  all  the  subordinates  have  had  their  attention  called  to  it,  in  the 
pDse  and  to  the  end  of  prevention.  All  subordinates  have,  as  well,  al- 
ways been  stimulated  to  the  duty  of  keeping  the  Executive,  from  time 
jtotime,  fully  and  promptly  supplied  with  information  to  secure  the  etM- 
rient  execution  of  the  law.  Aud  it  is  not  improper,  perhaps,  for  me 
Ijiere  to  observe,  thac  my  learned  associate,  Mr.  Cashing,  and  myself, 
iviiig  been  called  upon  to  execute  this  statute  in  the  office  of  At- 
Itorney-General  of  the  United  States,  we  can  bear  testimony  to  its  vigor 
pd  its  efficiency,  in  the  every  day  action  of  the  Government.  It  is 
Hmitted  to  and  not  questioned,  and  produces  its  effect.  Whether  the 
i'overnment  of  the  United  States,  possessing  that  power  under  and  by 


1;^ 


:>» 


31  c 


•  JS  . 

t 

■.     '.- 

'},*• 

-.) 

%^ 

% 

a  - 

'-,''  ., 

;!i 

\  •-^''- 

i' 

#. 

■^?»ft 

W-Wm 


I 

( 


ii'! 


i  i 


I  IHti?. 


I'f*: 


482 


SI  ITLK.MKXTAKV    Al{(il  MKNTS    AND    STATKMENTS. 


iiutboi'ity  of  tlie  stJitiito,  litis  always  been  successful  or  iu)l,  or  lias  ;il. 
wa.v:s  used  due  diligence  in  its  exercise,  and  whether  it  is  accountable 
to  this  or  that  nation  for  a  faxdty  execution  of  its  duties  of  neutralitv. 
are  tjuestions  which  this  Tribunal  cannot  dispose  of,  and  they  are  only 
remotely  collateral  to  any  discussions  properly  before  the  Arbitrators. 

Sir  Alp:xani)i:u  Cockhurn.  "If  you  are  argninji^  now  upon  tluu 
point,  Mr.  Kvarts„explain  this  to  me.  By  the  last  English  Act  ol'  187(i. 
the  Secretary  of  State  has  jwwer,  under  certaiu  circumstances,  to  order 
a  vessel  to  be  seized,  and  then  it  is  provided  that  the  owner  of  sucli 
vessel  may  make  claim,  <S:c.,  which  the  court  shall  as  soon  as  possiblt 
consider.  1  want  to  ask  you,  what,  under  your  Act  of  1818,  whicli 
gives  i)ower  to  the  I'resident  to  seize,  under  similar  circumstances, 
would  be  the  course  of  proceeding's  in  such  a  case  '.  How  would  tlif 
owner  be  able  to  know  whether  his  vessel  was  one  liable  to  seizure  and 
confiscation  !  How  would  he  get  his  vessel  back  again  accordinj"-  to 
your  form  of  procedure  *. 

Mr.  KvAKTS.  1  take  it  for  granted  that  the  detention  which  the  Tres 
ident  might  authorize,  or  cause  to  be  made,  would  not  be  an  indetinitr 
tletention.  IJy  the  terms  of  the  Act,  however,  that  exercise  of  the  ex 
ecutive  power  is  not,  necessarily,  terminated  by  a  judicial  appeal  of  any 
kind. 

Sir  ALKXA^'DEU  Cockiu  kn.  "Do  you  mean  to  say  that  the  ship  .sliall 
remain  in  the  hands  of  the  Government  T 

3Ir.  EvAKTS.  If  the  i)arty  chooses  so  to  leave  it  without  satisfactory 
explanation.  The  President  interposes  in  the  discharge  of  a  publi( 
duty,  to  prevent  the  commis.sion  of  an  act  in  violation  of  neutrality, 
w  hicli  he  believes  to  be  illegal.  On  representation  to  him  by  the  a;; 
grieved  party,  he  will  release  the  Aessel,  if  he  tinds  reason.  If  he  (lo('> 
not  so  release,  then  the  vessel  remains  subject  to  the  continued  exei 
cise  of  Executive  control,  under  the  same  motives  that  tirst  inducedit, 

Sir  Alexander  Cockburn.  "  Would  not  the  President,  in  the  or 
dinary  practice  of  things,  direct  that  the  matter  should  be  submittii! 
to  judicial  determination  T 

Mr.  EvAR'j'S.  This  Executive  interception  carries  no  confiscation.  It 
merely  detains  the  vessel  and  the  owner  can  apply  for  its  release,  giviiij; 
an  explanation  of  the  matter.  But  the  Executive  may  say,  "  I  am  im  | 
satistied  with  your  explanation ;  if  you  have  nothing*  else  to  say,  I  \vill 
keep  your  vessel :"  or  he  may  send  it  to  the  courts  to  enforce  its  coii 
tiscatiou. 

Sir  Alexandj:b  Cockburn.  "  Which  does  he  practically  do  ?" 

Mr.  E VARTS.  lie  practically,  when  not  satistied  to  release  it,  usuallv , 
sends  it  to  the  court,  because  the  situation  admits  of  that  disposition  I 
of  it.     Under  the  Act  of  the  United  States,  there  is  the  same  actual 
terception  by  the  Executive  which  your  Act  of  1870 

Sir.  Alexander  Cookburn.  "  Under  our  Act  the  Executive  lia.^  ihJ 
discretion ;  it  must  send  it  to  the  courts." 

Mr.  Evarts.  Under  our  Act,  we  trust  the  Executive  for  a  proper  c\  | 
crcise  of  the  oflScial  authority  intrusted  to  him. 

In  the  American  Case,  some  instances  of  the  exercise  of  this  powtij 
on  a  very  considerable  scale  will  be  found.  ( Page  12G  of  the  Freutli I 
translation.)  The  documents  explaining  these  transactions  are  col  j 
lected  at  length  in  the  Appendix  to  the  American  Counter-Case. 

Sections  38  to  41  of  the   ipecial  argument  call  in  question  our  \w\ 

■th.  i,,M.i.>,  .1  sition  as  to  onus  prohandi.    It  is  said  that  we  improimll 

"'""'  ui;dertake  to  shift,  generally,  the  burden  of  proof  aud  nj 

«jnire  Grej;t  Britain  to  discharge  itself  from  liability  by  artirmativir 


MK.    i:\  AIM'S     .SUI'I'LEMENTAL    AKtUJMENT. 


4.s;; 


F,'  M 


lit  the  .sliil>  shall 


proof  ill  all  cases  wlioro  wo  chargo  that  the  acrt  done  is  within  the  obli- 
ij'atiou  of  the  Three  Kiiles.  This  ciiticisni  is  enforced  by  reference  to  a 
fiise  sirisinff  in  the  public  action  of  the  ITnitcd  States  under  the  Treaty 
of  17!>4  with  (Ireat  Jiritain. 

I  will  spend  but  few  words  here.  The  propositions  of  our  Argu- 
ment are  easily  understood  upon  that  i)oint.  They  come  to  this :  that, 
whenever  the  United  States,  by  its  jiroofs,  liave  brought  the  case  in 
liand  to  this  stage,  that  the  acts  which  are  complained  of,  the  action 
and  the  result  which  have  arisen  from  it,  arc  violations  of  the  require- 
ments of  the  law  of  nations  us  laid  down  in  the  Three  llules,  and  this 
action  has  tak?u  place  within  the  jurisdiction  of  Great  Britain,  (so  that 
the  principal  fact  of  accountability  within  the  nation  is  established,) 
then,  on  the  ordinarj'  })rinciple  that  the  aftirmative  is  to  be  taken  up 
by  that  party  which  needs  its  exercise,  the  proof  of  "  due  ddigence'"  is 
to  be  supplied  by  Great  Britain.  How  is  a  foreigner,  outside  of  the 
(iovernment,  uninformed  of  its  conduct,  having  no  access  to  its  delib- 
erations or  the  movements  of  the  Government,  to  supply  the  proof  of 
the  icioit  of  due  diligence  ?  We  repose,  then,  upon  the  ordinary  prin- 
ciples of  forensic  and  judicial  reasoning.  When  the  act  complained 
of  is  at  the  fault  of  the  nidion,  having  been  done  within  its  jurisdiction, 
and  is  a  violation  of  the  law  of  nations  for  which  there  is  an  accounta- 
l)ility  ])rovided  by  these  Three  llules,  the  point  of  determination 
whether  due  diligence  has  l>een  exercised  by  the  authorities  of  the  coun- 
try to  prevent  it,  or  it  has  liappened  in  spite  of  the  exei'cise  of  due  dili- 
ieuce — the  burden  of  the  proof  of  "duo  diligence"  is  n])on  the  party 
charged  with  its  exercise. 

Let  us  look  at  the  case  of  the  Elizabeth,  which  is  (juoted  in  section 
41.  It  is  a  long  quotation  and  1  will  read,  therefore,  only  the  conclud- 
ing part.  It  will  be  found  on  page  50  of  the  French  translation  of  the 
special  argument.  The  (juestiou  was  as  to  the  burden  of  proof  under 
the  obligation  that  Jiad  been  assumed  by  the  United  States: 

The  \troiniso  wasrontlitiouiil.  We  will  restore  in  all  those  cases  of  coni)>laiiit  where 
it  shall  be  established  by  sutticient  testiiiiouy  that  the  facts  are  true  which  form  the 
liasis of  our  promisi! :  that  is,  that  the  ]trop«'rty  chiiiued  belongs  to  British  subjects: 
that  it  w  as  taken  either  within  the  line  of  .jurisilietional  iirotection,  or,  if  on  the  high 
Mjas,  then  by  some  vessel  illegally  armed  in  our  ports;  and  that  the  property  so  taken 
liiis  been  brought  within  our  ports.  By  whom  were  these  facts  to  be  proved  /  Accord- 
iiii^  to  every  principle  of  reason,  justice,  or  eiiuity.  it  belonu;s  to  him  who  claims  the 
'lonetit  of  a  promise  to  prove  that  he  is  the  person  in  whose  favor,  or  under  the  eir- 
1  iimstances  in  which  the  promise  was  intended  to  operate. 

A  carefid  perusal  of  this  passage  is  suflicieut  to  show  that  thaj'ucts  here 
insisted  upon  as  necessary  to  be  proved  by  the  claimant  are  precisely 
cquivjilent  to  the  facts  which  the  United  States  are  called  upon  to  prove 
iu  this  case.  The  facts,  as  1  have  before  stated,  bring  the  circumstances 
of  the  claim  to  the  point  where  it  appears  that  the  responsibility 
tor  the  injury  rests  upon  Great  Britain  nnkus  due  diligence  was  used 
by  the  Government  to  prevent  the  mi.schievous  conduct  of  the  subjects 
itr  residents  of  that  kingdom  which  has  produced  the  injuries  complained 
of.  In  the  absence  of  this  due  diligence  on  the  pare  of  that  Government. 
the  apparent  responsibility  rests  undisturbed  by  the  exculpation  which 
the  presence  of  due  diligence  will  furnish.  The  party  needing  the  ben- 
efit of  this  proof,  upou  every  principle  of  sound  reason,  must  furnish  it. 
This  is  all  we  have  insisted  upon  iu  the  matter  of  the  burden  of  proof. 

Iu  conclusion  of  the  first  chapter  of  this  special  argument,  the  em- 
inent Counsel,  at  section  43,  takes  up  the  "  Terceira  af- 
Mr,"  and  insists  that  if  Great  Britain,  iu  a  particular  situation 
for  the  exercise  of  duties  of  neutralitj',  took  extraordinary  measures,  it 


1']\c  Tfrcfira  iifta 


i 


1 

■'■t^- 

.-..-«         ■ 

">'-:i"i 

|; 

■i» 

■   '■'  ; 

1 

•fil 

484 


SUPl'LEMKNTAUV    ARdUMKNTS    AM)    STATE.>H:XT8. 


I  ■ 


'1- 


.tit. 


(Iocs  not  prove  that  the  Government  were  under  oblifjation  to  tal.  ^  tit- 
Name  measures  in  every  .similar  or  comparable  situation. 

We  referred  to  the  Terceira  att'air  for  the  purpose  of  showing  that  tin- 
Crown  by  its  prerogative  2w«-vf««'(?  authority  for  the  interception  of  en. 
terprises  originating  within  the  kiugdom  for  the  violation  of  neutrality. 
The  question,  whether  the  Executive  will  use  it,  is  at  its  discretion.  The 
power  we  ])rove,  aiul,  in  the  discussions  in  both  Houses  of  ParliamcMit.  it 
was  not  denied,  in  any  (piarter,  that  the  power  existed  to  the  extent  that 
ice  call  for  its  crcrcise  iritltin  Britinh  jurisdiction.  The  question  in  contro 
versy  then  was  (although  a  great  majority  of  both  Houses  voted  nffainst 
the  resolutions  condemning  the  action  of  the  Government)  whether,  in 
the  waters  of  Portugal  or  upon  the  seas,  the  Government  could,  m  itii 
strong  hand,  seize  or  punish  ves.sels  which  had  violated  the  neutrality 
of  Great  Britain  by  a  hostile  though  unarmed  expedition  from  its 
ports.  The  resolutions  in  both  Houses  of  rarlianient  received  the  siii- 
port  of  only  a  small  minority.  Mr,  Phillimore,  however,  says  the  learned 
Counsel,  expresses  the  opinion  in  his  valuable  work  that  the  miuority 
were  right. 

Sir    Alexanoeu    Cdckiiukn.  "  I   confess    1    alwavs    thought   >(> 
myself.'' 

Mr.  EvARTS.  But  the  point  now  and  here  in  discu.s.sion  is,  what  Wfiv 
the  powers  of  the  Crov  n  .cithin  the  limits  of  British  jurisdiction,  and  it 
is  not  necessary  to  consider  who  were  right  or  who  were  wrong  in  tin- 
divisions  in  Parliament.  AVhat  all  agreed  in  was,  that  the  fault  charged 
upon  the  Government  was  the  i.ivasion  of  the  territorial  rights  o{ 
another  nation. 

But  we  cited  the  Terceira  ati'air  for  the  additional  purpo.se  ofshowin- 
the  actual  exercise  of  the  power  in  question  by  the  Crown  in  that  ease. 
This  was  important  to  us  in  our  argument ;  it  justly  gave  support  to  tlie 
imputation  that  the  powers  of  the  Government  were  not  diligently  exei 
cised  during  the  American  Kebellion  in  our  behalf.  AVhere  there  is  :i 
will,  there  is  a  way  ;  and  diligence  means  the  use  of  all  the  faculties 
necessary  and  suitable  to  the  accompliishment  of  the  i>roposed  end. 

Now,  in  conclusion,  it  mu.st  be  apparent  that  the  great  interest,  liotli 
in  regard  to  the  important  controversy  between  the  High 
Contracting  Parties,  and  iu  regard  to  the  principles  of  the 
law  of  nations  to  be  here  established,  turns  upon  your  award.  That 
award  is  to  settle  two  great  questions :  whether  the  acts  which  form  tlit 
subject  of  the  accusation  and  the  defense,  are  shown  to  be  acts  that  are 
l)roscribed  by  the  law  of  nations,  as  expressed  iuthe  Three  Kules  of  the 
Treaty.  You  cannot  alter  the  nature  of  the  case  between  the  two 
nations,  as  shown  by  the  proofs.  The  facts  being  indisputably  established 
in  the  proofs,  you  are  then  to  pass  upon  the  question  whether  the  ontfit 
of  these  tenders  to  carryforward  the  armament  of  the  hostile  expedition 
to  be  joined  to  it  outside  of  Great  Britain  is  according  to  the  law  ot 
nations  or  not. 

When  you  pass  upon  the  question  whether  this  is  a  violation  of  the 
second  Kule,  you  pass  upon  the  question,  under  the  law  of  nations. 
whether  an  obligation  of  a  neutral  not  to  idlow  a  hostile  expedition  to 
go  forth  from  its  ports  can  be  evaded  by  having  it  sent  forth  in  parcels. 
and  having  the  combination  made  outside  its  waters.  You  cannot  so 
decide  in  this  case,  and  between  these  parties,  without  establishing  by 
your  award,  as  a  general  proposition,  that  the  law  of  nations  proscrib 
ing  such  hostile  expeditions  may  be  wholly  evaded,  wholly  set  at  naught 
by  this  equivocation  and  fraud  practiced  upon  it;  tj^at  this  can  be  done, 
not  by  surprise — for  anything  can  be  done  by  surprise — but  that  it  can 


m 


NTS. 

Ill  to  tal. ^  tic 

(wiiig  that  till- 
[•ccptiou  ofcii- 
of  neutrality, 
iscretion.  Tin- 
Parlianioiit.il 
lie  extent  tliat 
^tioii  in  eoiitrc 
J  voted  (({/((inst 
it)  wlietlier,  in 
lit  conUl,  witli 
tbe  neutrality 
itioii  from  its 
ieived  the  sui. 
lys  the  learned 
t  the  minority 

s    thoiij;lit   ^0 

1  is,  what  wen- 
uliction,  and  ii 
wrong  ill  tin- 
e  fault  charj-vd 
orial  rights  of 

>08e  of  showing 

u  in  that  ease. 

support  to  tlic 

liligently  exti 

ere  there  is  a 

I  the  faoultit's 

posed  end. 

;  hiterest,  botli 

:een  the  Iligli 

inciples  of  tlic 

award.    That 

ivhich  form  thf 

le  acts  that  aiv 

le  Kules  of  tlK' 

ween  the  two 

ly  establi.sliotl 

Ither  the  onttit 

tile  expedition 

to  the  law  of 

lolation  of  the 
Iw  of  nations. 
[expedition  to 
|rth  in  parcels. 

Tou  cannot  so 
Itablishiug  by 
|ions  proscrib- 

set  at  naught 
can  be  done, 

lut  that  it  can 


MR.    EVART8     SlI'I'LEMEXTAL    AHca'MKNT. 


4S5 


lie  done  openlif  and  of  ripht.  These  methods  of  combination  outside  of 
the  neutral  territory  may  be  resorted  to,  for  the  violation  of  the  obliga- 
tions of  neutrality,  and  yet  the  neutral  nation,  knowingly  sutfering  and 
]»ormitting  it,  is  free  from  responsibility !  This  certainly  is  a  great  ques- 
tion. 

If,  as  we  must  anticijiate,  you  decide  that  these  things  are  proscribed 
by  the  law  of  nations,  the  next  question  is,  was  "due  diligence"  used 
by  (Ireat  Brit.ain  to  jirevcnt  them  * 

The  measure  of  diligence  .ictually  used  by  Great  Britain,  the  ill  con- 
sequences to  the  United  States  from  a  failure  on  the  part  of  Great 
llritain  to  use  a  greater  and  better  measure  of  diligence,  are  evident  to 
all  the  world.  Your  judgment,  then,  upon  the  second  question,  is  to 
pronounce  whether  that  measure  of  diligence  which  was  used  and  is 
known  to  have  been  used,  and  which  produced  no  other  result  than  the 
maintenance,  for  four  years,  of  a  maritime  war,  upon  no  other  base  than 
that  furnished  from  the  ports  and  waters  of  a  neutral  territory^,  h  the 
measure  of  "due  diligence,"  to  prevent  such  use  of  neutral  territory, 
which  is  required  by  the  Three  Rules  of  the  Treaty  of  Washington  for 
the  exculpation  of  Great  Britain. 


['rraiisliition.'  ] 


v.-ai{(;l:mknt  ok  mi 
arcumknt  ok  sik 

PROTOCOL  Will.) 


.  CISHIN(;,  IN  KKKLY  TO  THI-:  SI'KiMI. 
IIOINOKLL  PALMKII,  Ai:(a  ST  r..     is|-:i: 


t?H'!t 


Mr.  PlJESlDKNT  AM)  (JKNTLK-MKiX  OV  TIIK  TrIHI'NAL  :  W«*  an  ;i],. 
piouchiiig',  iis  J  hope  at  least,  the  eiul  of  these  h)ny(lel»ate.s. 

The  two  Cioveinnieiita  had  presented  their  Cases  and  Connter  ('u>c>. 
supported  by  vohuninous  dociunents.  They  had  also  presented  tiuii 
respective  Arjiiinients,  tlie  whole  in  eonforniity  with  the  stipulations  ot 
the  Treaty  of  Washin<;ton,  (Articles  1\'  and  V.) 

Thus  the  reynlar  ar.nuinents  prescribed  by  the  Treaty  have  Ito^'u 
closed. 

iXow,  at  the  request  of  one  of  the  honorable  Arbitrators,  the  Tribnual 
havS  requested  from  Knalaml,  as  it  had  the  ri<.'ht  to  do,  e.\i)lanatioiis  uii 
certain  definite  points,  nanudy  : 

1.  The  question  of  due  dilij^ence.  generally  considered. 

2.  The  special  question  as  to  the  effect  of  the  comuiissions  held  liy 
Confederate  ships  of  war  entering-  British  ports. 

3.  The  special  <iuestion  as  to  supplies  of  coal  in  JJritish  ports  to  ('on- 
federate  ships. 

The  Counsel  of  Great  Britain  has  takeu  advantage  of  this  oppor 
tunity  to  discuss  the  points  laid  down,  and  in  reference  to  theui  to  ecui- 
ineut  on  the  Argument  of  the  United  States. 

I  do  not  complain  of  this,  but  I  state  the  fact. 

"We,  the  Counsel  of  the  United  States,  accept  the  situation  such  a.s  it 
•  is  made  for  us;  for  we  had  no  desire  further  to  occupy  the  attention  ut 
the  Tribunal. 


iy 


V.-PLAIDOYER  DE  I^IR.  CTSIIINTJ,  CONSEIL  DES  I^.TATt^-UXIS,  DEVANT  LE 
TRIBUNAL    ARBITRAL    DE   UEXKVE,   EN   RfirONSE   A    L'ARGUMENT  DI 
CONSEIL  DE  «A  MAJESTfi  BRITANNIQUE. 

MoxsiKiH  LK  Pi!i':sirn;xT  kt  Mkssiiurs  du  Trhjinai,:  Nous  aiiiuoclioiis,  je  I't'^iM  le 
du  inoins,  tie  la  lin  «le  ces  loufjjs  tlcbats. 

Les  deux  gonverueinentR  avaient  pioseuto  lenrs  ini^moires  et  lenrs  coutrc-nit'inoins 
appuyds  snr  des  docuiueuV'j  'oluiuineux.  lis  avaient  aus&i  pioscnto  leurs  plaidoyeis 
lespectifs,  le  tout  contbraoidtiit  uux  stipulatious  du  traitc  de  Washington,  (Ait.  IV 
etV.) 

Ainsi  out  6t6  clos  les  drTso*,-*  n^nliers  presents  par  lo  traitc. 

Maintcnant,  sur  la  <ti;iUii:ulo  d'nu  dos  bouoraljlcs  arbitres,  le  tribunal  a  roiiiiisde 
I'Angleterro,  commo  11  eu  avait  le  droit,  des  explications  siu"  certains  points  dctemiiuis 
u  savoir : 

1.  La  question  des  dues  diligences,  traitec  d'uue  nianiere  gon«5rale. 

2.  La  question  8p<5ciale  de  savoir  quel  a  ^to  Tetiet  des  commissions  posscWes  par  ks 
vaisseaux  de  guerre  confdddrds  qui  sont  entres  dans  les  ports  britanui<[nes. 

3.  La  question  spdciale  dea  approvisiounemeuts  de  cbarbou  accovdcs  aux  vaisseaux 
conf6d6rds  dans  les  ports  britanniques. 

Le  conseil  de  lu  Grande-Bretagno  a  us6  de  cette  occasion  pour  discutcr  les  points 
po8<Ss,  et,  ii  propos  de  cela,  pour  commenter  le  plaidoycr  des  £tats-Unis. 

Je  ue  me  plains  pas  de  ceci,  mais  je  constate  le  fait. 

Nous,  couseils  des  fitats-Unis,  acceptons  la  situation  telle  qn'ello  nous  est  fiiite  :  cai 
nous  n'avions  uul  d^sir  d'occuper  davautage  I'ittention  du  tribunal. 

1  This  argument  was  written  and  x>re8ented  in  the  French  text  as  shown  in  the  uote. 


.tv  have  Ik-om 


MK.    (is|IIN(iS    SI'I'I'LKMKN'I'AL    AK'(il  MKNT. 


-ts' 


yiy  two  rolh'nj^iM's  liavo  niscMssod  fully  tln'  second  iiiiil  tliinl  points. 
SL-airel.v  have  tliry  Irlt  ni«'  a  ffw  wonis  to  say  on  tliesnhjcrt  ol'tlic  tlisl 
point. 

In  fact,  the  task  wliicli  lias  drvolvctl  on  inc  is  nn  rely  that  of  summing; 
lip  the  (incstion,  and  adding  some  special  oUservations. 

I  vontni'D  to  address  the  Ttilninal  in  Ki-ench,  in  order  to  econonii/e 
Its  i)re(!ions  time,  and  to  readi  the  (-lose  of  the  discussion  as  soon  as 
l»()ssil>le.  For  this  ohjeet  I  willinjily  sa(!iiluu'  all  oratori<'al  pr«'tensions  : 
I  en«leavor  to  make  myself  nmlerstood :  that  is  all  I  as[»ire  to. 

TIIH  <il  ESTION   ol'   DIE   DILKIENCK. 


It'iv  .1:1 


("•III 


Wo  ha\e  now  to  consi<ler  the  cpu'stion  (»f  duo  diligence  geiuTally 
treated.   ' 

What  does  this  expression  mean  .'  Does  the  Tribunal  require  the 
tliooretieal  lecture  of  a  professor  on  due  dilifienee  .'  I  do  not  thiid<  so. 
Such  }i  discussion  wonhl  be  perfectly  i<lle,  for  the  following'  reasons : 

1.  This  theoretical  question  has  already  been  discussed  to  satiety, 
(treat  IJritain  lias  discussed  it  three  times  in  her  Case,  ^  ,i„.„,hi;,.i  ,... 
(.'ounter  Case,  and  Argument,  and  she  has  allowed  herself  """""' ""'  "•""-' 
twelve  whole  months  to  reflect  on  it,  and  accumulate  arguments  and 
i|iiotation8  for  the  instruction  of  the  Tribunal.  We,  in  the  mime  of  the 
Tnited  States,  have  not  expended  so  many  words,  but  we  have  said  all 
we  wished  and  desired  to  bring  before  tlie  honorable  Arbitrators. 

2.  The  two  Parties  were  agreed  that  the  theoretical  (luestion  no  longer 
ileserved  their  attention. 

Htif  Majo'ity's  Government,  [Hays  tli(!  British  Couiitor  Case,]  (pajic  '^2,)  lias  iidt  at- 
tijinptod  a  i.iHk  which  has  ba^luii,  as  it  lieliovcs,  the  iiiKfi^'ty  of  jiiiists  of  all  tiinos 
and  conntries, — that  of  (lcfinin<{  with  any  approacli  to  iirecisioii.  apart  from  thf  cir- 
1  iniistauccs  of  any  particular  case,  what  shall  ho  decmcil  duo  dilij>'3ncc  or  rcasoiiabh> 

iiire. 

And  the  Counter  Case  quotes  and  adopts  the  following- passage,  (page 
:-*,  note:) 


t1 


'■■f 


I 


ichons.  je  To^im  iv 


losscdoos  par  Its 


Hcuter  Ics  points 


us  est  faite  :  c;u 


lovrn  iu  the  note. 


Mos  denx  collogues  viennent  do  discnter  aniplement  lo  second  et  lo  troisiome  pointj*. 
C'est  a  poiuo  s'ils  m'ont  laisso  (inchiuo  cliosc  a  dire  i\  I'ognrd  du  premier  point. 

En  effet,  co  u'est  «ino  la  charge  do  rcsumer  la  (question  et  d'aj outer  (inolqnesobserva - 
lious  spdciales  qui  m'est  dovolue. 

J'ose  lu'adresser  an  tribunal  jn  fran^ais,  afin  d'economiser  son  temps  procionx  ot 
il'arriver  au  plus  tAt  a  la  clAturo  des  d«5bats.  Dans  ce  but  je  sacrifie  volontiers  toute 
lueteutiou  oratoire;  j'essaie  de  uie  faire  comprende;  c'est  tout  ce  ijue  j'anibitionne, 

LA  QCESTIOX  DES  DUES  DIUGEXCES. 

Maiutcuant  il  s'agit  do  la  fiuestiou  des  dnos  diligences  traitoo  d'uno  manii-re  g>'U(5- 
vale. 

Que  vent  dire  cotte  phrase?  Est-co  f|UO  le  tribunal  domande  unolcfon  thooriqne  de 
lU'ofesseur  snr  les  dues  diligences  ?  Jo  no  lo  crois  pas.  I'ne  telle  discussion  serait  par- 
laltemeut  oiseuse  pour  les  raisons  suivantos : 

1.  On  a  ddjil  discutd  a  satidtd  cette  question  thdoririue.  La  Grande-Bretagne  Va  dis- 
(utiSo  trois  ibis,  dans  ses  mc^moires  et  son  plaidoyer,  ot  olio  s'est  donndo  douze  niois 
I'litiers  ponr  y  rMechir  et  accuniuler  des  argninonts  et  doa  citations  pour  I'instrnction 
till  tribunal.  Nous,  au  nom  des  Ctats-Uuis,  nous  n'avons  pas  dr^penso  taut  de  paroles, 
luais  nous  avons  dit  tout  ce  qii'il  dtait  dans  notro  dosir  et  uotro  voloute  de  faire  savoir 
iiux  honorablos  arbitres. 

2.  Les  deux  jiarties  ctaient  d'accord  quo  la  ((uestion  thooriqne  no  moritait  pins  lenr 
attention. 

"Lo  gouvernement  de  sa  Majesty?,"  dit  lo  contre-momoiro  britanniqne,  p.  5*4,  "ne 
'i'est  pas  impost  uno  tilche  (pii  a  d6jou<^,  i\  ce  qu'il  croit,  I'habilete  des.jurisconsultes  do 
tons  les  temps  et  do  tons  les  pays ;  il  n'a  pas  chorchtS  il  ddBner  avec  une  provision  ap- 
proximative, en  dehors  des  circonstances  sp^^ciales  i\  un  cas  particulier,  la -.lesure  do 
*t'  <iu'ou  devra  reconnaltre  comme  la  duo  diligence  on  le  soin  raisonnable." 

Et  le«ontre-mdmoire  adopto  ou  citant  ce  qui  suit,  (page  24,  note:) 


4S8 


Sl'l'FLEMENTAKY    AllGUMENTS    AND    STATEMENTS. 


¥■ 


!i]K.: 


m 


For  tlif  n!st,  [nays  a  disti  11^11  islu'd  Froiicli , jurist,  treatiiij^of  this  subject  ia  foinicc- 
tioii  with  piiviitii  hnv,]  for  the  rest,  whctlua-  tjie  (>bli<ration  in  qnustion  is  (or  a  tiiinj;  tn 
beKiveii,ort'or  oiiofo  bo  (h)ii(',tho  imputation  of  default  is,  iiipnictice,  hardly  aiiucstion 
of  law.  The  (pH'stion  of  fact  is  always  tlits  dominant  i»oint,  even  if  it  is  not  tiic  soli 
one.  (Larombiero,  "  Tln-orie  et  pratique  des  oblij^atious,"  vol.  i,  p.  417.) 

The  Counsel  of  the  United  States,  accepting  the  doctrine  hiid  down  by 
Enghind,  have  replied  .as  follows: 

We  conenr  in  the  final  considerations  of  the  JJritish  Counter  Case  on  this  subject  (it 
due  dilif^ence,  in  leavinjj;  *'  the  Arbitrators  to  ,jud<re  of  the  faets  presented  to  them  by 
the  li<rht  of  reason  and  justiee,  aided  by  the  knowledj^e  of  the  general  powers  unll 
duties  of  administration  which  they  possess,  .as  persons  long  conversant  witii  i)ublii 
atl'airs."'     British  Counter  Case,  \).  liia.     (Argument  of  the  United  States,  p.  l.'jH.) 

We  remain  of  this  opinion ;  we  refuse  to  retrace  our  steps  and  to  dis 
cuss  afresh  questions  completely  exhausted  long  ago,  and  which  have 
been  even  admitted  to  be  inopportune  by  both  parties. 

3.  I  recognize  no  diligence  but  the  diligence  prescribed  by  the  Treaty. 
The  Counsel  of  Great  Britain  appears  to  endeavor  to  establish  rules  ot 
due  diligence  outside  of  the  Treaty.  It  is  too  late  to  enter  on  this  path. 
After  the  progress  which  the  Tribunal  has  already  made  in  its  labors, 
it  is  no  longer  worth  while  to  re-embark  on  the  open  sea,  the  vague' 
region  of  international  law  outside  of  the  Treaty.  We  take  our  stand 
on  the  explicit  words  of  the  Treaty,  which  subordinates  general  interna 
tional  law  to  the  compact  of  the  three  Kules,  which  is  retrospective,  and 
which  expressly  applies  due  diligence  to  the  special  cases  and  objects 
contemplated  by  those  Eules. 

For  this  last  reason  I  refu.se  to  follow  the  Counsel  of  Great  J>ritain  in 
his  discussion  of  the  question  of  the  difference,  if  any  exists,  according  t(i 
international  law,  between  the  duty  of  neutrals  with  regard  to  armed 
ves.sels  and  their  duty  with  regard  to  vessels  equipped  for  war  but  not 
yet  armed. 


,,j,, 


•>■■;.(  ! 


'•  Du  reste,"  a  dit  un  .juriscousulte  oiuinent  de  France,  «|ui  examine  la  nuestiou  an 
point  de  vuc  de  droit  privc,  "Du  reste,  soit  iju'il  s'agisse  d'une  oldigation  de  doniui 
on  de  faire,  la  prestation  des  fautes  est,  dans  la  ]>rati(iue,  a  peine  uu(;  (juestion  de  droit. 
Le  point  de  faite  y  est  toujonrs  dominant,  qiiand  il  n'y  est  pas  tout."  (Larouibii'ic, 
"Thf'orie  et  pratique  des  ol)ligations."'  tome  i,  p.  417.) 

L's  conseils  des  fitats-Uins  out  ropoudu,  en  acceptaut  la  doctrine  de  la  firaudo- 
Bretagne,  couime  suit: 

"Nous  souimes  d'accord  avce  les  considerations  qui  termiuent  le  coutre-nionioirc 
Initanniqno  sur  cettc  question  de  la  diligence  suHisante,  pour  laisser  les  arbitres  ,iny;or 
Ics  faits  <ini  leur  sont  soumis,  d'apres  les  lumieres  de  la  raison  et  do  la  Justice,  aidet"- 
jiar  la  connaissanco  des  i)ouvoirs  et  des  devoirs  generaux  de  radmiuistration  tpie  lem 
a  dou  nde  leur  longue  pratique  des  affairs  publifjues.  Contre-meiuoire  britanuicpio. 
p.  151,  texte  frauyais."    (i'laidoyer  des  Etats-Unis,  p.  :528.) 

Nous  restons  de  cet  avis;  nous  refuaons  do  revenir  sur  nos  pas  et  do  discuter  »lf 
nouveau  des  questions  depuis  lougtomps  doja  completcmeut  epuiseos,  et  memo  recou- 
uues  iuopportuncs  par  les  deux  parties. 

3.  Je  ue  reconnais  pas  d'autres  diligences  que  les  diligcuiccs  du  traite.  l-e  couseil 
de  la  Grandti-Brctague  paralt  s'ertbrcor  d'etablir  des  regies  des  diligences  dues  eu  de- 
hors du  trait(5.  II  est  trop  tard  pour  outrer  dans  cetto  voio.  Apres  les  p.as  en  avaut 
<iue  le  tribunal  a  d<^ja  faits  dans  ses  travaux,  il  ne  vatit  plus  la  paino  de  nous  rouii)ar- 
quer  sur  la  vague,  ou  le  vague  du  droit  des  gous  en  douors  du  traite.  Nous  nous  ap- 
Ituyons  sur  les  i)aroles  explicitesdu  traitd,  (luisubordoune  le  droit  des  gens  general  an 
l)acte  des  trois  regh!s,  qui  est  retroactif  et  qui  applique  expresst^meut  les  diligeiiie> 
dues  aux  cas  et  aux  objets  spdciaux  do  ces  regies. 

I'our  c(^tte  deruiere  consid<?ration  ,je  refuse  do  suivre  lo  conseil  do  la  Grande-Bretagno 
<lans  sadiscussiou  sur  la  ciuestiou  de  la  difi'dreuco  qui  exisfce  d'apres  le  droit  des  gens, 
s'il  en  existe  uue,  outre  le  devoir  des  noutres  h  I'ogurd  des  navires  arnu^s  en  guerre  el 
leur  devoir  a  I'egard  des  nuvires  dquipds  pour  la  guerre  et  pas  encore  arunSs. 


'  There  is  a  play  on  the  words  "  la  vague"  and  "  le  vague' 
cannot  be  translated. 


in  the  original  which 


MR.    Cr-SHlNi;  8    SUI'PLEMENTAL    ARfJUMENT. 


489 


laid  down  Itv 


The  Treaty  cuts  short  this  question  absolutely.  It  is  sufticient  to  call 
attention  to  the  tirst  Itule  : 

A  neutral  Govcnniit'iit  is  bound — 

lirst.  To  usi;  iluc  (Ulij:;cn(!i'  foprevont  tht;  fitting;  out,  iirrniu"?,  or  oi|uipi>in^,  within  its 
jiuisdietion,  of  nny  vessel  wiiieli  it  has  leasonable  ground  to  biditive  is  intended  to 
cruise  or  to  carry  on  war  against  a  Power  with  wliieh  it  is  at  peace;  and  also  to  use 
like  dilijuence  to  prevent  the  departure  from  its  Jurisdiction  of  any  v;'ssel  intended  to 
1  raise  or  carry  on  war  as  above,  such  vesstd  haviuy  been  specially  adapted,  in  whole  or 
in  i)art,  within  such  jiu'isdiction,  to  warlike  use. 

Note  the  three  first  conditions  clearly  laid  down  by  the  Rule, — "  the 
litting  out,''  (which  has  been  omitted,  without  sutticient  reaso.i,  in  the 
English  translation,)  "  arming,"  "  or  equii)ping." 

Note  also  the  two  following  <!onditious,  w^hich  are  equally  clear,  "any 
vessel  intended  to  cruise  or  carry  on  war,"  or  "any  vessel  having  been 
specially  adapted  in  whole  or  in  part  to  warlike  use." 

Looking  to  these  conditions,  so  precise  and  definite,  to  whicU  the  dili- 
gence of  the  Treaty  is  to  be  applied,  and  considering  the  manifest  use- 
lessuess  of  any  discussion  outside  of  these  three  Rules,  it  may  well  be 
suspected  that  the  object  of  the  Counsel  of  Great  Britain,  in  thus  digress- 
ing from  the  Treaty,  was  to  malce  a  fitting  preface  to  the  observations 
which  follow,  designed  to  weaken,  if  possible,  the  force  of  the  words  of 
Sir  Robert  Pinllimore  andSir  Roundell  Palmer  quoted  in  the  Argument 
otthe  United  States. 

SIR   R015ERT   PIIILLIMORE. 


Vjfws  of  Sir    Itii 
•Tl  I'hillihiorf. 


We  have  <iuoted  from  Sir  Robert  Phillimore's  Commen- 
taries on  International  La  .v  the  following  passages : 

There  remains  one  i|uestion  of  the  gravest  importance,  namely,  the  nsi)onnibilitji  of  a 
■'^lifkfor  the  acts  of  her  dth)iix,  involving  the  duty  of  a  neutral  to  prevent  armaments 


Lo  traite  tranche  absolunu'ut  cette  question.  II  suHiL  d'appeler  Tatteiition  sur  la 
pieniiero  regie  : 

"  Tn  gouvernement  neutre  est  oblig*' — 

"1.  A  faire  toutes  les  diligences  nec;essaii'es  pour  s'opposcr  dans  les  limltes  de  sa  .juri- 
iliction  ;'i  ce  (lu'uu  vaisseau  soit  mis  en  mesure  do  ju'enilre  hi  mer,  a  ce  (ju'il  .soit  armt- 
de  la  (iranilo-  ^|  "iici|uip<',  quand  ce  gouverneeient  a  dts  motifs  sutlisants  i»our  jtenser  (^uo  ee  vaisseau 
ist  destisuf'  a  croiser  on  a  faire  des  actes  de  guernj  contre  une  puissance  avec  laquelh- 
ilt'st  lui-meme  en  paix.  Ce  gouverneinent  doit  fair  egalement  toute-s  les  diligences 
iitcessaires  pour  s'opposer  a  ce  <[u'nn  vaisseau  destine  a  croiser  ou  a  faire  des  actes  de 
ijiierre,  comme  il  est  dit  ci-dessns,  quitte  les  limites  de  la  jiiridiction  territoriale  dans  le 
HIS  oil  il  y  aurait  et«'  specialeuient  adapte,  soit  eu  totalite,  soit  eu  partio,  a  des  usages 
k'llige  rants."' 

Notons  les  trois  premieres  conditions  tres  claires  de  la  regie  :  "  i\  ci  qu'nn  vf/sseau 
mit  mis  eu  mesure  de  )irendre  la  mer,"(ce  qui  est  oiuis,  sans  raisou  suttisaute,  daus  la 
traduction  anghiise;)  "a  ce  (|uil  soit  arme,"  "  ou  <^quipt^." 

Notons,  aussi,  les  deux  conditious  suivautes,  (^galement  claires,  "  nu  vaisseau  destim- 
il  iioiser  ou  a  faire  des  actes  de  guerre,"  ou  "  un  vaisseau  specialemeut  adapte,  soit  eu 
'ofahte  noit  en  partie,  a  des  usages  belligerants." 

Ku  voyaut  ces  conditions,  si  detinies  et  si  nettes,  aux(|Uelles  les  diligences  du  traite 
itoivent  etre  appliquee,  et  eu  considerant  I'inutilite  manifesto  de  toute  discussion  en  de- 
liorsdes  trois  regies,  ou  pourrait  bien  soup^onner  i{ue  le  conseil  de  la  ({rando-Bretagno, 
111  secartaut  ainsi  du  traite,  avait  pour  objot  de  faire  une  pn^faee  convenable  aux  ob- 
wviitions  «iui  snivent,  destineesa  attenuer,  s'il  cAt  dte  possible,  la  force  des  paroles  de 
''ir  Robert  I'hillimore  et  de  .Sir  Roundell  Talmer,  citees  dans  le  plaidoyer  des  fitats- 
I'liis. 

8nC   ItOliKliT   I'HIM.I.MOIti:. 

Nous  avons  cite  des  C'ommentaires  du  droit  international  de  Sir  Robert  Phillimore 
le^  I>ii88age8  suivants  : 

'■  11  reste  une  question  de  la  plus  grando  importance,  li  savoir,  la  renpoiisahiUte  (Vmi 
''«'  par  rapport  aiix  acte»  de  ses  citoyens,  laquelle  implique  le  devoir  d'uii  neutre  d'eui- 


J      "  j 

Si        1  I 

"5  ', 


490 


SrPPLE.MENTARY    ARGTMENTS    A\D    STATEMENTS. 


ii  \' 


Um; 


!;^ 


£111(1  ship.s  of  war  iHsuiiij-'  from  her  sliores  for  tlie  sorvit-i'  of  a  liellifforoiit.  thoiiyli  -H'  h 
iirn>.iinciits  were  furnished  aiul  .ships  \verec(|nipj»etl,  luiilt,  aiiil  sent  witliont  the  Isi.nw  ]. 
elf^e  and  contrary  to  the  onh'rs  of  her  GovernnuMit. 

»  *  X  ¥  »  *  • 

It  is  a  maxim  of  <>on(nal  law,  that  so  far  as  forei<>n  States  are  eoiicerned.  the  w,!',  .,1 
the  snbjeet  must  he  eonsidered  as  bound  uj)  in  that  of  his  Wovereif^n. 

It  is  also  a  maxim  that  eaeh  State  has  a  rij^ht  to  expei-,t  from  another  the  ohs(i\  ain  c 
of  international  obserA  .itiotis,  A\ithout  regard  to  Avhat  may  be  tlio  nuiuieip;ii  intiiiis 
which  it  possesses  for  ;nforeiii<:;  this  observance. 

The  act  of  an  individual  citizen,  or  of  a  small  numberof  citizens,  is  not  to  be  imp  u.d 
V  ithout  clear  proof  to  the  Government  of  which  they  are  subjects. 

AGovernment  may  by  kuotflcdne  aiul  f<ii(l'(raiUT,  as  well  ns  by  dir(!Ct;'()'Hi/NN/i)H.  Imi  i.m, 
responsible  for  the  acts  of  subjects  whom  it  does  not  i>re\  ent  from  the  eommissidii  „( 
an  injury  to  a  foreign  State. 

A  Government  is  juesumed  to  be  al)le  to  restrain  the  subject  within  its  teiiiniiv 
from  contravening  the  oblij^atifms  of  neutrality  to  which  the  State  is  bonntl. 

A  State  i»  prima  facie  responsible  for  whatever  is  done  within  its  jurisdiction  ;  lor  it 
nmst  ho  pni<imu(l  to  be  callable  of  ]U'e\'enting-  or  pimishing  otVenses  committed  within 
its  boundaries.    A  body  piditie  is  therefori'  r(^sponsible  for  the  acts  of  iiidivi(luiil>. 
which  are  acts  of  actual  or  meditated  hostility  toward  a  nation  with  which  th(<ii.\ 
erumeut  of  these  subjects  professes  to  maintain  relations  of  friendship  or  neutrality. 

The  Counsel  of  Great  r>iitain  now  affirms  that  all  these  expressiuiis 
of  Sir  Robert  rhillimore  must  be  considered  as  limited  to  the  ease  ot  ;ni 
armed  vessel,  or  of  a  militarif,  and  not  a  naral  c.rpediilon. 

I  deny  the  possibility  of  such  a  distinction.  It  has  no  foundation  in 
the  words  of  the  author.  I  appeal  in  that  re.*<pect  to  the  appreciiiti'  1 1  t 
the  honorable  Arbitrators. 

IkiL  supposinji'  that  this  distinction  were  well  founded,  it  w>  I'.i  ,  ; 
Justify  the  conclusions  of  the  Counsel  of  (Ireat  Britain,  because  thu  iniii- 
ciples  laid  down  by  vSir  Robert  Phillimore  are  of  general  application. 
and   comprise    all    possible  cases.     Take  any  duty  whatever  of  due 
diligence  to  be  fulfilled  on  the  part  of  a  neutral  (lovernment  toward  it 

pecher  que  des  arniements  et  des  vaissoaux  de  guerre  sortent  de  ses  ports  pour  le  m  i- 
viced'un  belligerant,<|Uoifpm  ces  arniements aieut  etc  founiis,  et  les  navires  constrnit*. 
e<iuipes  et  ex])cdi«'s  a  riiisii  et  contre  les  ordres  de  son  gonveriieinent.  *  *  "  ("est 
line  niaxime  de  droit  g(^ncial  qu'en  ce  qui  concerno  les  ('tats  ('trangers,  la  volonti'  dii 
.sujet  doit  (Hre  consiih^rc'e  coiiime  li(5e  i\  celle  de  son  sonverain. 

"  C'est  anssi  une  waxime  (pie  clia(iiie  etat  a  lo  droit  d'attendre  d"un  autre  I'accKiii- 
plissenientdes  obligations  i.it-'rnationales, sans  ("gard  a  cc  <ine  peuvent  t'tre  les  ln(nlll^ 
municipaux  (pi'il  po.ssede  pour  ^es  fairo  observor. 

"  L'acte  d'un  simple  citoyeu  on  d'uii  petit  nombre  de  citoyens  ue  doit  pas  ("tre  im- 
put(^  sans  iireiive.s  (Svidentes  an  gouvornement  dont  ils  sont  snjets. 

"  Un  goi'verueineut  pent,  par  coHHfl(N.saHce  et /o/cVamcc  anssi  bien  que  par  pi-rmi^flon 
directe,  devenir  responsable  des  actos  do  ses  sujots,  (pi'il  u'emp()che  pas  de  comuu^tn: 
des  dommages  a  uu  etat  t^tranger. 

"  Uu  gouvornement  est  pr(5sum(^  pouvolr  cmpccher  .ses  .snjets,  dans  les  liuiites  di  >iiii 
territoire,  do  eontrevenir  aux  obligations  de  la  neutralit(*  qui  lient  I'etat.        * 

*  I'n  (Stat  ent  prima  facie  lesponsablo  do  tout  ce  (jui  so  fait  dans  IV'tendiu  il' 
sa  juridicticm,  car  il  doit  Hre  2^re'sHmv  capable  d'empocher  on  do  punir  les  otfenses  tciii- 
mises  en-defil  de  ses  froutit'res.  Un  corps  politi(iue  est,  par  cons('(pnMit,  responsaW"  ilt  ^ 
actes  d'individus  qui  sont  des  actes  d'liostilit<)  otfective  on  prem6dit(^e  contre  uiif  111- 
tion  avec  laquelle  le  gouveruenieut  do  ces  individus  d(^clare  cutretenir  des  relatitJiis 
d'amiti(5  on  do  neutraliti^.'' 

Maintenant  le  conseil  do  la  Grande-lJretaguo  pn'^teiid  qne  toutes  ces  expression'-  li  • 
.Sir  Robert  Phillimore  sont  cens('cs  devoir  i-tve  borucfes  au  cas  d'un  vaisseau  ani"'  >  ■ 
guerre  on  d'une  expedition  militairc  et  iion  navale. 

Jo  nio  la  possibilitf?  de  cette  distinction.  EUe  ii'a  aucun  fondement  dans  les  paii>it> 
do  I'auteur.    Jo  men  rapporto  il  rapprdciation  des  honorables  arbities. 

Mais,  eu  snpposaiit  que  cctto  distinction  soit  bien  foude'e,  clle  no  justifierait  pn.'- 
conclusions  di!  c(mseil  do  la  (iraiide-Bretague,  parce(iuo  les  princip(!8  (^rionc«^s  paiMi 
Robert  Phillimore  sont  d'uno  ajiplication  gi^m'^rale  et  compreunent  tons  his  cas  p<i.^>i- 
bles.    Pronons  un  devoir  des  due.*  dilig(Mices  (inelcoiuiues  a  reniplir  do  la  part  (i'lin 
gouverucmeut  nentre  envorw  un  gouveriKiiuent  boUigt'rant,  et  alors,  dtins  oe  cm-.  >"i 


i 


.f^ 


^Pii 


MK.    CUSHINCiS    SUPPLEMENTAL    ARGUMENT. 


401 


10(1,  tlU'  wi'.l  Ml 


»t  U)bi'  iiiii'  Urd 


tlans  los  p!iri«lf> 


m 


bt^lligereut  Government,  and  then,  in  that  case,  Sir  Robert  Philliniore 
rolls  us  in  what  manner  and  according-  to  what  principles  the  neutral 
Government  should  act.  It  must  fulilll  its  international  obligations 
•'without  regard  to  what  may  be  the  municipal  means  which  it  posses- 
ses for  enforcing  them."  JNforeover,  "  a  Government  may  by  Inowktlge 
and  sufcrance,  as  well  nshy  direct  permission,  become  i2s,i)oim[b\o  for  the 
acts  of  subjects  whom  it  does  not  prevent  from  the  eonmii.ssion  of  an  in- 
jury to  a  foreign  State."' 

Such  is  the  thesis,  on  the  subject  of  due  diligence  (jcnerniUj  considered . 
which  the  Counsel  of  the  United  States  have  constantly  maintained, 
and  which  Great  Britain  has  constantly  contested  in  her  Case,  Counter 
Case,  and  Argument." 

Now,  the  duty  which  is  incumbent  on  Great  Biitain  is  defined  by  the 
rhree  Kules,  and  we  have  the  right  to  consider  the  general  nuixims  of 
Sir  llobert  Phillimore  in  the  light  of  these  liules.  This  is  what  we  have 
ilone  in  our  Argumen.t. 

THE  LAIUD   KAMS. 

But  we  hasten  to  see  what  the  Counsel  of  Great  Britain  has  to  say 
concerning  the  quotation  we  have  made  from  a  speech  of  Sir  Jtoundell 
Talmer  on  the  subject  of  the  "  Laird  Hams." 

I  beg  to  call  the  attention  of  the  Tribunal  to  the  words  of  the  speech 
itself: 

I  do  not  hesitate,  [siiys  Sir  Ifomitlell  Palmer,]  to  say  boldly,  ami  iu  the  tiue  ol'  thi: 
"Duutry,  tluit  the  (Government,  on  their  own  rcxpon^iihility,  detained  theni. 
riiey  were  prosecntin};'  inqniries  which,  thouj^h  imperfect,  left  on  the  v,.  lys  ..rsn  nun. 
mind  of  the  Government  strong  reasons  for  believing  that  the  result  !',',ilui'ii','ria'i!U' ' 
might  prove  to  be  that  these  ships  were  intended  for  an  illegal  purpose, 
mil  that  if  tliey  left  the  country  the  law  would  be  vicdated,  and  a  great  injury  done 
to  a  friendly  Power.  The  Goveviimenf  did  not  neize  the  nhips  ;  they  did  not  hy  any  act  taki 
possession  of  or  interfere  with  them ;  but,  on  their  own  responsibility,  they  gave  notice  to 
tiie  parties  interested  that  the  law  should  not  be  evaded  nntil  the  pending  inquiry 
^llould  be  brought  to  a  conclusion,  when  the  Government  would  know  whetlier  the 
iiKpiiry  would  result  in  affording  conclusive  grounds  for  seizing  tl  e  ships  or  not. 

Iiobcrt  Phillimore  nous  apprcnd  de  (luello  nianicrc,  et  confornK^ment  i\  (ptels  principes, 
le  pjouvernement  neutre  doit  agir.  II  doit  reniplir  ses  obligations  Internationales, 
sans  avoir  6gan\  ace  quo  peuvent  etroles  nioyens  municipaux  qu'il  i)os8t"^do  pour  les 
t'aire  observer."  De  plus,  "  un  gouvernement  imnt,  itur  connaissancc  at  toh'ranee  aussi 
I'ioii  quo  pur  2>enni88iou  rfi>a7<', deveuir  responsable  de  ses  sujets,  qu'il  n'ompecho  pas  de 
riiiiiiettredes  domm/iges  il  un  ^tat  efcronger." 

iV!  o  ■■st  la  these,  iiu  sujet  des  dues  diligences  traiteea  d'nne  manivre  f/ene'rale,  quo  lc> 

■iiifi";| '  des  I^^tats-Ui  is  out  coustammeut  soutenue,  et  que  la  Grande-Uretagne  a  cou- 

■"i    i,i  i':nt  combattue  dans  ses  nnSmoiros  et  son  plaidoyer. 

yi:   i  fjuant,  le  devoir  qui  incombe  h  la  Grande  Bretagne  est  d<5fini  par  les  trois 

l''<;  er  nous  avons  It    droit  do  considorer  les  uiaximes  generates  de  Sir  Kobert 

I'hi-    •.■!or'  u  la  luniiere  de  ces  regies.     C'est  hi  ce  que  nous  avons  fait  dans  notro 

.  'j'''.  \    .. 

i.F.s  i.AiiU)  i:ams. 

Mais  nous  avons  hate  de  voir  ce  quo  le  conseil  de    a  Grando-Bretagne  vent  din- 
lonceruant  la  citation  que  nous  avons  fiiic  d'uu  disccurs  do  Sir  Rouiulell  Palmer  a 
piopos  des  ■  Ijaird  lams.'' 
J'appello  l'attev\tion  du  tribunal  sur  les  mots  nn"mesde  ce  discours: 
"Jo  u'hesito  pas,"  dit  Sir  Jlonndcll  Palmer,  "  a  dire  hardiment  et  a  la  face  du  iiay.-* 
'[uo  le  gonvernement.  sous  na  jvopre  niponsabilite,  les  a  detenus.    On  poursuivait  une 
t'liquct'i  qui.  quoiqu'lkiparfaite,  laissaitihms  I'esprit  du  gouvernement  do  fortes  raisons 
lo  croiro  q'l'ou  parviendrait  ik  constater  «pnj  ces  uavires  dtaieut  destines  i\  nn  but 
■CKia!,  et  quo,  s'ils  qnittaient  lo  pays,  la  loi  serait  viole'oet  un  grand  pr<^judiee  cause  k 
J 'rssanco  amie.     Le  gouvernement  n^a  pan  mini  le^narires;  il  n'a  rienfait  ponrn'rn 
I  vi  XT    m  pour   h'H   nrreter,   niais,  sous  sa  responsabilite,    il  a  jircvenu  les  parties 
itf  lessees  quo  ^„  loi  uo  seruit  pas  dliuUiO  jusqu'u  ce  ([uo  l'enqu»*'te  comnicneee  fftt 
termiudo,  et  jns(iu'a  CO  quo  le  gouvernomont  sftt  si  I'entiuete  reussiruit  a  titablir  des 
laisons  sullisantes  pour  uutoriser,  oui  on  non,  la  suisio  des  navires. 


i 


J*l,llkl 


492 


Sl'PPLEMENTARY   ARGUMENTS   AND   STATEMENTS. 


•'' 


U  '. 


m?. 


If  any  other  great  crime  or  mischief  were  in  progress,  couhlit  he  donhted  thiit  tho 
Clovernment  would  ho  jiistitied  in  taking  stejis  to  prevent  the  evasion  from  .jiistioooi 
The  person  whose  conduct  was  under  investigation  until  the  completion  of  theiii(|iiiiy  .' 
In  a  criminal  case,  we  know  that  it  is  an  ordinary  course  to  go  hefore  a  magistrate 
and  some  information  is  taken,  of  a  most  imperfect  character,  to  justify  the  acciisiul's 
connuittal  to  prison  for  trial,  the  i)risoner  heing  remanded  from  time  to  time.  That 
course  cannot  he  adopted  in  cases  of  seizures  of  vessels  of  this  description.  The  law- 
gives  uo  means  for  that,  and  therefore  it  is  that  the  Government,  on  their  own  respon- 
sihility,  must  act,  and  have  acted,  in  determining  that  what  had  taken  place  with  re- 
gard to  the  Alabama  should  not  take  place  with  respect  to  these  ships ;  that  tlioy 
should  not  slip  out  of  th.i'  Mersey,  and  join  the  navy  of  the  belligerent  Power,  coiitraiv 
to  our  law,  if  that  were  the  intentif/n,  until  the  inquiry  in  progress  should  be  so  fai 
brought  to  a  conclusion  as  to  ouable  the  Government  to  judge  whether  the  ships  were 
really  intended  for  innocent  purposes  or  not. 

The  Government  were  determined  that  the  inquiries  which  tliey  were  making  shoulil 
be  brought  to  a  legitimate  conclusion,  that  it  might  be  seen  wlu^ther  those  inipiirio 
resulted  in  evidence,  or  uot,  of  the  vessels  being  intended  for  the  Confederates,  and 
that,  in  the  mean  time,  thej'^  would  not  permit  the  ends  of  justice  to  be  battled  by  the 
sudden  removal  of  the  ships  from  the  river. 

It  is  impossible  that  the  case  of  the  Government  can  now  be  brought  before  tin- 
House;  but  the  Government  have  acted  under  a  serious  sense  of  their  duty  to  tlieiii- 
selves,  to  Her  Majesty,  to  our  allies  in  the  United  States,  and  to  ccerj/  othev  nation  with  whom 
Her  Majesty  is  infricndshi})  and  alliance,  and  with  ivhoni  questions  of  this  kind  may  be  UubU 
hereafter  to  arise. 

Under  a  sense  of  that  duty,  they  have  felt  tliat  this  is  uot  a  question  to  be  treatfil 
lightly,  or  as  one  of  no  great  importance.  If  an  invasion  of  the  statute  law  of  the 
land  was  realh  I  out  to  take  i)laco,  it  was  the  duty  of  the  Gf"'ernnieut  to  use  al! 
possible  means  i  'in  the  truth,  and  to  prevent  the  escape  of  vessels  of  this  kind. 

to  be  used  against  dly  Power. 

The  sentiments  ^  ipressetl  in  this  speech  do  honor  to  the  man  and  tlic 
statesman.  Here,  at  hist,  we  recognize  the  hniguao-e  of  an  enligliteued 
conscience,  and  of  a  lawyer  equal  to  his  high  duties,  instead  of  the  ex 


.  ^^  ! 


ri: 


tr  '' 


''Si  tout  .autre  grand  crime  on  mefait  <^tait  en  train  de  se  commettre,  pourrait-oii 
douter  (jue  le  gouvernemont  ne  fut  justifit5  a  prendn^  des  mesures  ))our  enipeehei 
d'ocha]ipcr  a  la  justice  tonto  persoune  dont  la  conduite  serait  sous  le  coup  d'uiie 
t?n(|uete  jusfjuVi  ce  que  cette  en(|Uete  fftt  terminee  ?  Dans  une  cause  criminelle,  m)\\> 
savons  <iuc  la  marche  ordinaire  consiste  A  aller  devant  un  magistrat ;  on  procede  a  uik 
information  ("uu  caractere  fort  imparfait  pour  justilier  I'envoi  de  raccuse  en  prison  eii 
attendant  sou  jugement.  Dans  I'iutervalle,  le  prisounier  est  amene  a  ditt'erciito 
reprises  devant  le  jugo  instructeur.  Mais  cette  marche  ne  pent  pas  etro  suivie  dans 
les  cas  de  saisie  de  vaisseatix  de  cette  espece.  La  loi  ne  nous  en  donne  pas  les  moyen>. 
Et  c'est  aiusi,  par  consf^ciueut,  <iue  le  gcuivernement,  sous  sa  propre  responsabilite,  a 
di'i  agir  et  a  agi  en  dccidant  que  ce  (jui  avait  eu  lieu  relativeineut  a  1' Alabama  ne  si 
renouvellerait  pas  par  rappo- ;  a  ces  navires,  et  (jn'ils  no  sortiraient  pas  de  la  Mersey 
pour  aller  rejoindre  la  mariub  des  puissances  belligorantes,  coutrairement  a  nos  lois. 
s'ils  en  avaieut  I'inteution,  tant  que  l'en<iuete  pendante  n'aurait  pas  abouti  a  une  con- 
clusion propre  a  mettro  le  gouvernemont  eu  mesure  de  juger  si  cos  biltimeuts  ctaient 
r<5ellemont  destin(3s  it  un  but  inoifeusif. 

"  Le  gonvernemeut  est  decid<5  a  pousser  jnsqu'a  una  conclusion  l<^gitime  reuqnete 
qu'il  fait  faire,  alin  que  I'on  puisse  voir  si  ces  investigations  aboutissout  h  prouver,oni 
on  non,  si  ces  vaisseanx  sunt  destines  anx  conft5ddr(:!s  ;  en  attendant,  il  n'a  pas  vouln 
permettre  qn'ou  dejouat  les  tins  de  la  justice  en  dloignaut  subitement  les  uavires  des 
eaux  dn  flenve. 

"II  est  impossible  de  porter  la  cause  du  gonvernoment  devant  la  Cliambre;  mais  le 
gonvernemeut  a  agi  sous  I'empire  d'nn  sentiment  serieux  de  ses  devoirs  envers  hii- 
m»''me,  envers  sa  Majestd,  enrers  les  £tats-  Unis,  nos  allies,  envers  tonta autre  nation  acec  qui 
■•(«  Majeste  est  en  relations  d^amitie  et  d'alliance,  el  arev  qui  des  questions  de  ce  genre  jyeuwit 
j)ar  la  suite  s'elerer. 

"Le  sertiment  de  son  devoir  lui  a  fait  voir  (jue  ce  n'est  lit  ni  nne  question  il  traiter 
legeremo.  ni  nne  question  sans  importance.  Si  Ton  avait  rdellement  I'inteution 
d*«''luder  la  loi  du  royaume,  c'dtait  le  devoir  du  gonveruemei.t  de  se  servir  de  tons  les 
iiioyens  possibles  pour  coustater  la  vdritd  et  pour  empficUer  I'evasioa  de  vaisseanx  des- 
tines a  attaquer  une  puissance  amie." 

Les  sentiments  exprim«58  dans  ce  disconrs  font  houneur  h  rhomme,  et  it  I'hotnnie 
d'dtat.  Icl,  enfin,  on  reconnalt  le  langage  d'une  conscience  dclairtSe,  et  d'uu  juriscon- 
sulte  a  la  hauteur  de  ses  grands  devoirs,  an  lieu  des  excuses  et  des  faiblesses  qui  rem- 


"'ffp^l 


TS. 

mbted  Mint  tlio 
from  Justiptiiit 
of  theiiKjiiirv  .' 

0  a  maj^iHtrati'. 
;  tlic  aecusiiiVs 
to  tiiiio.  Tliiit 
tioii.  Tlic  liiw 
3ir  own  respoii- 

1  place  with  ic- 
ips ;  that  thov 
*ower,  contrary 
houUl  be,  SI)  fill 

the  ships  were 

!  making  should 
tliosB  iiKpiirio 
jiiftiderates,  ami 
)o  balllcd  by  the 

ii<j;ht  before  the 
r  duty  to  tlitMii- 
nation  ivith  irlwm 
chid  may  be  liubk 

ion  to  be  treated 
tute  law  of  tlie 
iment  to  nse  all 
scls  of  this  kind, 

;  man  and  tlic 
n  enlightened 
;ad  of  the  ex- 


kttre,  i)onrrait-oii 

!  l>our  empecluM 

le  conp  iriiiH' 

criniinelle,  ni)u> 

)n  proeede  a  uiu 

use  en  prison  en 

a  ditt'ercute." 

tre  snivio  dans 

pas  les  nioyeiis. 

•osponsabilite,  ii 

'Alab<ania  ne  m 

lis  de  la  Mersev 

nient  a  nos  loi>. 

bonti  a  nne  con- 

iltimeuta  dtaieut 


MK.    CrSHIN(iS    SUI'I'LEMENTAL   AROUMEXT. 


4'J 


gitime  renqnete 
it  k  prouver,oni 
11  n'iv  pas  vouln 
les  uavires  des 

lambre ;  mais  le 
k'oirs  envers  liii- 
re  nation  avcc  i/iii 
ce  genre  }>eiu-ent 

estion  it  traitor 
nent  I'intentiou 
ervir  de  tons  le.i 
e  vaisscanx  des- 

le,  et  i\  rhomnie 
d'nu  jnriscon- 
blosscsqui  reiu- 


puses  and  weaknesses  with  which  Lord  Kasscll'scorrespoiulenee  is  tilled. 
Kvery  word  of  this  memorable  speech  is  worthy  of  consideration. 

Here,  it  was  the  Government  which  acted  on  its  own  responsibility, 
and  which  detained  the  suspected  vessels.  It  was  the  Government 
which  gave  notice  to  the  parties  interested  that  the  law  should  not  be 
evaded,  and  that  the  vessels  should  not  leave  the  JMersey  until  the  pend- 
ing inquiry  should  result  in  proving  whether  or  not  these  vessels  were 
intended  ^)r  the  confederates.  It  was  the  Government  which  must  act 
in  determining  that  what  had  taken  place  with  regard  to  the  Alabama 
and  I  add  in  parenthesis,  with  regard  to  the  Florida)  should  not  be  re- 
peated with  respect  to  these  ships.  And  the  Government  acted  under 
a  serious  sense  of  its  duty  to  itself,  to  Her  Majesty,  to  the  United  States, 
and  to  every  other  nation  with  wliich  Her  Majesty  has  the  same  rela- 
tions of  amity  and  alliance  as  with  the  United  States. 

It  must  be  remembered  that,  in  conformity  with  the  advice  of  Sir 
Roundell  Palmer,  the  (irovernmeut  had  already  instituted  regular  Judi- 
cial proceedings  against  the  Alexandra  and  the  Pampero. 

And  it  was  the  Government  which  acted,  prompted  by  the  sense  of 
its  duty  toward  the  United  States.  AVhat  a  contrast  to  that  which  the 
(lovernmeut  did  not  do  in  regard  to  the  Alabama  and  Florida! 

The  Government  had  thrown  on  Mr.  Adams  and  on  Mr.  Dudley  all 
the  cares  with  reg.ard  to  the  Alabama  and  Florida;  refusing  to 
act  on  its  own  responsibility,  it  had  disdainfully  invite<l  the  United 
States  to  act  on  their  responsibility.  It  remained  with  its  arms  folded, 
whilst  rogues  devoid  of  honesty  or  shame  were  unworthily  deceiving  it 
ou  the  subject  of  the  ownership  and  destination  of  these  vessels.  There 
was  no  provisional  investigation,  no  initiative,  on  the  part  of  the  Govern- 
ment, but  an  absolute  refusal  to  act  otherwise  than  by  legal  proceedings, 
and  those  to  be  originated  by  the  United  States. 

Now,  what  did  the  Government  do,  acting  of  its  own  accord  and  on 
its  own  responsibility,  in  the  case  of  the  "  rams  V  Did  it  institute  Judi- 
cial proceedings  ?     D'd  it  seize  the  vessels  ?    Did  it  arrest  them  ?    Was 


lilissent  la  correspondance  de  Lord  Knssell.  Chaiiue  mot  de  ce  moiuorable  disconr.s  est 
Jiijno  de  coiisidoration. 

lei,  c'est  le  gouvernenient  qni  a  tig'i  sons  sa  propre  re  ■)onsabilitt',  et  (|ni  a  detenn  les 
vnisscanx  snspeets.  C'est  le  fronvernenientcini  a  i»roveiin  les  ])artie8  interesscesqne  la 
liii  ne  serait  pas  elndoe  et  (|ne  les  navires  ne  sortiraient  de  la  Mersey  (|n'a|tres  qne  I'en- 
i|iicte  coninieneee  anrait  abonti  a  pronver  si,  oni  ou  non,  ces  vaisseaux  elaient  ilestino;; 
aiix  conft'deres.  C'est  le  ffouvernenient  (pii  a  di'l  aj^ir  en  deeidtiit  que  ce  qui  avait  en 
lieu  relativenient  a  I'Alabama  (et  j'a.jonte,  par  parenthese,  relativeinent  a  la  Fh)rhla) 
lie  se  renonvellerait  jias  \)nr  rapport  a  ces  naAires.  Et  le  gouvernenient  a  agi  sous 
rein])ire  d'un  sentiment  sorieux  de  ses  devoirs  envers  liii-nieme,  envers  sa  Majeste,  en- 
vers les  fltats-Unis  et  envers  toute  autre  nation  avec  laquelle  sa  Majeste  a  des  rela- 
tions d'amitie  et  d'allianee  coinnie  avec  les  Etats-Unis. 

Souvenons-nons  ((uc,  eonfornienient  anx  eonseils  de  .Sir  Roundell  Palmer,  le  ffouvcrne- 
ineiit  avait  deja  intentc  iles  ponrsuites  judiciares  en  regie  eontre  I'Alexandra  et  le  Pam- 
pero. 

Et  c'est  le  gonvernenient  (jui  agissait,  i)ou8se  jiar  le  sentiment  de  ses  devoirs  envers 
lisfitats-Unis.  Quel  contraste  avec  ce  quo  le  gouvernenient  no  faisait  pas  relative- 
nient a  I'Alabama  et  ii  la  Florida  ! 

Le  gouvernenient  avait  rejetd  sur  Mr.  Adams  et  snr  Mr.  Dudley  tons  soins  relatifs  a 
lAlabama  et  a  la  Florida ;  refu8ant<ragir  sons  sa  resiions.ibilitf^,  il  avait  dedaignensement 
iiivitcl  les  Etats-Unis  a  agir  sous  lenr  i'esponsabilitt5.  II  est  reste,  les  bras  croises,  tan- 
'li^que  desescrocs,  sans  foi  et  sans  honte,  le  troinpaient  indignenient  an  sujet  de  la  jiro- 
|iridt<5  et  de  la  destination  de  ces  navires.  NuUe  eiiqnete  provisoire,  nnllo  initiative  de 
i:i  part  du  gouvernenient ;  refus  absolu  d'agir  autrement  que  par  line  poursuite  jtidici- 
iiire,  et  eelle-ci  due  a  I'iuitiativo  des  fitats-Unis. 

Or,  (pi'a  faitle  gouvernenient,  agissant  de  lui-menie  et  sous  sa  propre  resjionsabilite, 
'l:nm  le  cas  des  "rainsf"  A-t-il  provoqnd  uue  itonrsuite  judiciairef  A-t-il  saisi  les 
iiuviresf    Les  a-t-il  anetesf    A-t-on  ngi  snr  des  t<^moiguages  sufHsants  pour  Justitier 


ig^fT- 


494 


sriTLEMHNTAKV    ARGIMENTS   AM)    STATEMENTS, 


a» 


action  tuken  on  evidence  suflicient  to  Jiistit'y  the  seizure,  and  sueh  as  had 
been  requirecl  lioin  Mr.  Adams  and  ]Mr.  Dudlej'  witli  regard  to  the 
Florida  and  the  Alabama?  No,  none  of  these  precautions  were  taken. 
IJut  the  GovernmcMt  ordered  an  inquiry  similar  to  that  which  Mr.  Adams 
had  begged  it  to  make  in  the  case  of  the  Floiida,  and  detained  the  "  rams" 
pending  the  result  of  the  inquiry,  "in  order  to  use  all  })ossible  means  to 
ascertain  the  truth,  and  to  prevent  the  escape  of  vessels  intended  to  be 
used  against  a  friendly  I'ower."' 

This  is  the  due  diligence  of  the  Treaty:  "To  use  all  ])0ssible  means 
i.mii..,,  „i  ,i,„  to  ascertain  the  truth  aiul  prevent  the  escape  of  the  vos- 
■'••■••■  sels.*' 

In  order,  then,  to  prove  in  the  most  convincing  manner  that  the  liritisli 
(lovernment  did  not  employ  due  diligence  in  the  case  of  the  Florida 
and  in  thjit  of  the  Alabama,  it  is  sufficient  to  notice  what  the  Government 
obstinately  refused  or  certainly  neglected  to  do  with  respect  to  those 
vessels,  and  what  it  did  actively  and  on  its  own  initiative  with  regard 
to  the  "rams."  The  comparison  necessarily  leads  to  a  conclusion  ad 
verse  to  Great  Britain.  And  Sir  Hugh  Cairns  was  perfectly  right  in 
saying  on  that  occasion — "Either  the  Government  must  contend  that 
what  they  did  in  the  attair  of  the  Ranis'  was  unconstitutional,  or  they 
ought  to  have  done  the  same  with  regard  to  the  Alabama,"  (and  1  add 
with  regard  to  the  Florida,)  "aiid  they  are  liable.'' 

It  remains  to  be  seen  exactly  what  the  Government  did  with  regard 
to  the  "rams."'  Sir  Itoundell  Palmer  categorically  affirms  thai  these 
vessels  had  not  been  seized,  but  that  they  had  been  detainerl.  lie 
repeats  this  declaration. 

In  another  speech,  it  is  true,  he  says.  si)eaking  of  the  Alexandra,  that 
the  Government  thought  it  its  duty  to  seize  the  ship  or  vessel,  accord 
lug  to  the  form  of  proceeding  uiuler  the  Customs  Acts,  (Argument,  p.  1"). 

But  such  was  not  the  course  followed  with  regard  to  the  rams,  tor 
they  were  not  seized  at  all,  they  were  simply  detained.    ]>ut  how  de 
tained  ?    The  context  clearly  implies  that  they  were  detained  by  means 
of  a  notitication  on  the  part  of  the  Government  to  the  builders  and  to 


la  saisie,  ot  pareils  a  conx  iiu'oii  avait  it'olanii's  de  Mr.  Adams  of  dc  ^ir.  Diidleja  rejranl 
de  la  Florida  et  <1<  VAhihaiiia  .'  Noii,  anciine  de  <;es  prccantioiis  u'a  oW-  i)rlse.  Mais  li- 
ifouvorneiuefit  a  ordouiio  iiiii'  einjiit'te  soinblable  a  cejle  que  Mr.  Adams  I'avait  priti  tl( 
faire  pour  la  Florida  ot  a  dotouu  les  "rauis,"on  attendant  le  resuitat  do  ren<|iioto,  "atiii 
do  30  sorvir  do  tons  les  nioyous  possibles  pour  constater  la  verit<''  et  pour  enipt'cln  i 
lovasiou  de  vaisseaux  destiui'-s  a  attaciueruue  puissance  amie." 

Voici  les  dues  diligenees  <les  regies  du  traito  :  "'.Se  sorvir  de  tons  los  moyeu.s  possi- 
bles pour  constater  la  v<'ritf'  et  pour  empi'clior  Tc'vasion  dos  vaisseaux." 

l>onc,  pour  etablir  jusqii'a  l'evidt?nce  la  pins  absolne  qno  le  gouvernoment  angliih 
n'avait  pas  employt'  les  dues  diligences,  dans  le  cas  de  la  Floiida  et  dans  celui  di 
I'Alabama,  il  sutlit  de  noter  ce  que  le  gouvernoment  a  obstindment  refuse,  on  certainc 
inent  iidgligd.  de  fiiire  relativement  a  ces  vaisseaux,  et  ce  qu'il  a  fait  activeniout  et  di 
sa  propre  initiative  relativenieut  anx  "rauis."'  la  comparaison  amime  forcdu'  "it  nut 
conclusion  qui  est  a  la  charge  de  la  Grande-Brctagne.  Et  Sir  Hugh  Cairns  avaiu  j)leim' 
uiout  raison  de  dire  a  cette  occasion:  "Ou  le  gouvernement  doit  souteuir  <ino  v 
qu'il  a  fait  dans  Tatfaire  des  "  rams"  n'dtait  pas  constitutiounel,  au  il  aurait  dft  agir  tli 
Mii'nie  a  IVgard  de  I'Alabauia,  [et  j'ajouto  de  la  Horida,]  et  il  est  responaable."' 

Reste  a  savoir  exactemont  oe  que  le  gouvernement  a  fait  a  I'dgard  des  "  rams."  Sir 
Ronndell  Palmer  artirme  catdgoriquenient  que  ces  uavires  u'avaieut  pas  etc  saisis,  uiai> 
qu'ils  avaient  dtd  detenus.    Ilr^itore  cette  declaration. 

Dans  un  autre  discours,  il  est  vrai,  en  parlant  de  I'Alexandra,  il  dit  que  Ic  goii 
\  ernemeut  croyait  de  son  devoir  de  saislr  ce  navire  ou  Mtimcnt,  selon  Ja  procedure  im- 
posde  par  les  lois  de  la  douane.    (Argument,  page  15.) 

^taient  pa^ 

coutextv 
pari  (111 


^m 


MR.    Cl'SlIIX(i«    SUPPLEMENTAL    AK(JUME\T. 


4!):» 


lo,s  moveus  possi 


tilt'  pvetendotl  owners,  no  doubt  aecoinpaniod  by  coriespondiny  ohUms 
afUliessed  to  tlie  oJlicers  of  the  Customs. 

The  Counsel  of  (ireat  liritain  loudly  and  positively  atlirnis  that  tlie 
means  adopted  on  the  resiwnsibility  of  the  (loveiniiient,  that  is  to  say, 
by  the  spontane«ms  action  of  the  ^Ministers  intrusted  with  theexeeutive 
power  of  the  Crown,  were  i)erfectly  legal  and  eonstitutional.  We,  the 
Counsel  of  the  L'nited  States,  are  hapi»y  to  be.  on  this  [)oint,  of  the  same 
ojtinion  as  the  Counsel  of  (Ireat  IJritain. 

lint  in  that  case  due  diligence  was  not  exereise«l  with  regard  to  the 
Florida  and  the  Alabama.    The  eonseciuenee  is  inevitable. 

in  the  extract  from  »Sir  Jfoundell  Palmer's  speech  on  the  subject  of  the 
Alexandra,  1  tind  an  esxpression  which  strikes  me.  He  says :  '•  You 
cannot  stop  the  ship  by  going  before  a  magistrate:  ic  must  be  done 
upon  the  responsibility  of  the  Covernment.*' 

llow  ?  It  must  be  done  upon  the  responsibility  of  the  Clovernmeut. 
Then  the  otBcers  of  the  (Customs  were  laughing  at  ^Ir.  Dudley,  or  else 
they  willfuUj'  deceived  him,  when  they  rcommended  him  to  begin  legal 
proceedings  on  his  own  (Dudley\s)  responsibility.  Then,  moreover, 
when  Lord  liussell  asked  Mr.  Adams  for  evi«lence,  the  latter  was  en- 
tirely right  in  replying  that  he  had  neither  the  power,  nor  the  means,  of 
instituting  legal  proceedings  in  Pingiand.  Then,  too,  the  Government 
totally  failed  in  its  duty  of  diu>  diligence  with  regard  to  the  Florida  and 
Alabama. 

or  THE  ro\v]:K8  of  the  (*uo\v-x  ix  England. 

riie  Counsel  of  (ireat  IJritain  endeavors  to  re])ly  to  the  arguments  ol 

tlie  United  States  with  regard  to  the  powers  of  the  Crown,     ,, ,.  „,  ,,, .. 

by  raising  loud  cries  of  arbitrary  i)ower.  and  violation  of  """' 
the  laws  and  constitution  of  Englaml. 

Let  us  understand  one  a)Jother.  lOither  Lngland  ]»ossesses  the  means 
(It  ))reventing,  within  her  territorial  jurisdiction,  the  belligerent  enter- 
prises of  unauthorized  individuals:  or  else  she  does  not  iwssess  them, 
riiere  is  no  escape  from  this  dilemma. 

-■luvenieineiit.  mix  coiistructtMirs  ct  iiux  jjvctcinlus  proprirliiii't'^.  sans  (Umte  avtic  des 
mdris  eoiT«!S))oiulant.s  adioHSt's  iiix  ofHcieis  do  la  doiiiiiif. 

1,0  eouseil  de  la  Giaiidc-lJrotagiie  fittiniie,  lianteinout  et  jtositiveinent,  <|Ut!  les  nioyen.-s 
ailoi)t*''sson.slare.spon.sabilitiMliiyonveiiiei«t'iit, — c'est-a-dire,  par  loiiioiiveiiitnit  spoil  tain- 
ilex  iiiinistres  dopositaircs  dii  pouvoir  ex(''cntit"  de  laConioiint', — I'taifut  ))arfaiti'iiient 
li'gaux  ct  constitutioiinels.  Nous,  coiiseiis  des  Etats-1  biis,  iKms  soiiuiil's  hemeux  d'etre. 
^ciiis  ec  rapport,  dti  iiu"iue  avis  i|iie  le  couhpII  de  la  Uraiido-lJretaj'iie. 

Mais  alors  ou  n'a  pas  pratiiiiie  les  dues  diligtMices  an  siijet  du  la  Florida  et  de  I'Ala- 
liaiiia.    La  consoqiieiioc  est  iiiovitablc. 

I'ansrextrait  du  discours  de  Sir  Koundell  Palmer,  an  su.jet  de  FAlexandra.  ,je  tronvc 
line  phrase  qui  me  frappe.  II  dit :  '•  ^'ous  ne  pouvez  pas  Tarri'ter  eu  allant  cbez  uu 
iiiiigistrat ;  il  faut  que  cela  se  passe  sous  la  respousabiliti'  dn  gouvernevieiit."' 

Comment?  j7/a«<  quo  cela  se  passe  sous  la  responsabilito  du  golivernement !  Alors 
li-s  orticiers  de  la  donane  se  sout  moqnes  de  Mr.  Diutley,  ou  bieu  ils  Font  sciemment 
rroini)e,  quand  ils  lui  out  reconiniaude  de  connnencer  des  poursnites  jndieiaires  sons  sa 
iivfipre  responsabilito,  a  lui,  Dudley.  Alors  aussi,  quaud  Lord  Russell  i  demande  des 
preuves  a  Mr.  Adams,  celui-ci  avait  mille  fois  raison  de  repoudre  qn'il  n'avait  ui  le  pon- 
voir  ui  los  nioyens  d'intenter  ties  i>oursnit<!8  Jndieiaires  en  Angleterre.  Alors,  aussi,  le 
.;i»uvernenient  a  totalemeut  failli  a  son  devoir  des  dues  diligences  relativeniout  a  la 
Kloriila  et  a  I'Alabauia. 

DES    I'OLVOIKS    nr.    I.V   COLKOXXK   D'.VXULKTKKliK. 

I."  I'ouseil  de  la  Graude-lJretague  essaie  de  rdpoudre  aux  argumeuts  des  Etats-Uuis. 
lelativement  aux  pouvoirs  de  la  Couronno,  en  poussant  les  hauts  eris,  eu  parlaiit  d'ar- 
•titrairo  et  de  violation  des  lois  et  de  la  constitution  d'Angleterre. 

Eiitendons-nons.  Ou  bien  I'Angleterre  possede  les  moyens  d'empi'cher  dans  sajuri- 
'liotion  territoriale  les  entreprises  belligorantesd'individus  non-autoris^s,  on  bien  elle 
H*-  )t>K  possede  pas.    On  ne  pent  pas  t^cliappei  a  ce  dilemmc. 


49G 


81TPLEMEXTARV    ARGIME:-7TS    AND    STATEMENTS. 


'i  '■ 


¥ 


Ohiifrnt  in  us    i  in- 
i>o?4«mI   Ity  I  n  t  «■  rn  1 

1  ioli;tl  liiw  ii.4  lll^•tlM 
U'lMllfd  tVoiii  1IMIIU 
*  ilial  law. 


If  slie  ])os.sessea  those  moans  and  does  not  exercise  them,  slie  is  Witiit- 
in}?  in  the  due  dilij^enee  of  the  Treaty. 

If  she  does  not  possess  then),  in  consequence  of  the  impediments  sh,. 
has  aUowed  her  Jurists  to  impose  on  her,  and  if  she  has  fjone  so  iar  ns 
to  abdicate  all  real  national  sovereignty,  she  is  still  wanting  in  the  due 
diligence  of  the  Treaty. 

As  is  well  said  by  Vattel:  "If  a  sovereign  who  could  retain  his  >ui,. 
jects  in  the  rules  of  justice  and  peace  sulfers  them  to  ill-treat  a  nation. 
either  in  its  body  or  members,  he  does  no  less  harm  to  the  whole  nation 
than  if  he  ill-treated  it  himself." 
As  rhillimore  says:  "  Each  State  has  a  right  to  expect  from  auotln  r 
the  observance  of  international  obligations,  without  regard 
to  what  may  be  the  munici])al  means  which  it  possesses  for 
enforcing  its  observance." 
As  says  Dana,  on  the  subject  of  the  law  of  the  Unitiil 
States : 

Our  obligntion  arises  from  the  law  of  nations,  and  not  from  our  own  statutes,  ami  i> 
measured  by  the  law  of  nations.  Our  statutes  are  only  means  for  enabling  us  to  jxr- 
form  our  international  duty,  aiul  not  the  affirmative  limits  of  that  duty.  Wi- an- :(^ 
much  responsible  for  insufficient  maehinery,  when  there  is  knowledge  and  oiiportimity 
for  renu'dying  it,  as  for  any  other  form  of  neglect.  Iiuleed.  a  nation  may  be  said  to  1>V 
more  responsible  for  a  luglect  or  refusal,  w hieh  is  an  imjierial.  continuous  act,  and  ^fcn- 
eral  in  its  oi)erjition,  than  for  neglect  in  a  special  case,  which  may  be  a  fault  of  suli- 
ordinates. 

Such  is  the  recognized  law  of  nations.  TheConn.sel  of  (heat  Britain 
admits  it.    Then  what  is  the  use  of  a  dissertation  on  arbitrary  power.' 

The  Counsel  appears  to  assert  that  what  is  done  by  any  Governnicnr 

beyond  the  provisions  of  a  irriften  Ian-  is  arbitrary. 

I  understand  this  notion  when  si)eaking  of  a  really  constitutioinil 

Government,  like  Italy,  Brazil,  Switzerland,  or  the  United 

:u,m'''<.V  .V!^V,'■'l'.>l,  States.     In   those  countries   the  executive  fanctionarics. 

Kingr,  Emperor,  President,  no  matter  what  the  title,  iunl 


IT1 


'I 


>1'^ 


Si  elle  pos.>iede  ces  nu)vens  et  ne  les  exerce  pas,  ellc  mani|Uc  anx  din-s  diligciK  i-  li:; 
Uaitd. 

Si  elle  ue  les  possede  i»as,  a  i-atiso  des  entraves  (|u'elle  a  ])i'ruiis  a  ses  h'gi.stcs  dc  I:.: 
imjtoser,  et  si  elle  en  est  arrivce  au  point  d'abdi<iut'r  toutu  vrritalde  souvcraiiut;: 
nationale,  elle  nui.;que  encore  anx  dues  diligences  du  traite. 

Comme  le  dit  bien  Vattel :  "Si  un  souverain,  qui  pourrait  retenir  ses  sujets  dan-  U- 
regies  do  la  Justice  et  de  la  paix.  souH'reiiu'ils  maltraitent  une  nation,  ou  tlaus  soiicoiji- 
ou  dans  ses  membres,  il  ue  fait  pas  moius  de  tort  a  toute  la  nation  que  s'il  la  maltr;ut;iii 
lui-meme." 

Comme  ledit  Phillimore:  "  Chaqne  etat  a  le  droit  d'attendrcd'un  autre  raccouipli>M  - 
nient  des  obligations  internationales  sans  f-gard  a  ce  que  peuvent  ttre  les  nioyi!i> 
municipaux  qu'il  possede  pour  les  faire  observer." 

Comme  le  dit  Dana,  a  propos  des  lois  des  fitats-Unis : 

"  Notre  obligatioiT  nait  du  droit  des  gens  et  non  de  nos  ))ropres  statuts,  et  c'e^r  lii 
droit  des  gens <)u'elle  revolt  sa  niesure.  Nos  statuts  ne  sont  <iu'uu  moyeu  de  nous  uiettic 
en  etat  de  remplir  uotre  devoir  international,  et  non  les  linutes  afHrmatives  de  cc  ilt- 
voir.  Nous  sommes  autant  responsables  de  I'insuffisance  d'uue  machine,  (piaud  non- 
connaissons  les  inoyens  et  avons  I'oceasion  d'y  porter  remede,  que  de  tout  autre  geiiif 
de  negligence.  Certes,  on  peut  dire  qu'une  nation  est  plus  respousable  d'uno  negligeiui' 
on  d'un  refus  ((ui  est  uu  acte  souverain,  coutinu,  et  ayant  uu  caractere  de  geueraliti- 
dans  sa  consommation,  que  d'uue  negligence  dans  un  cas  particulier  qui  pent  provtiiii 
de  la  faute  de  subordonncs."' 

Tel  est  le  droit  des  gens  reconuu.  Le  conseil  de  la  Grande-Bretagne  I'admet.  Aloi-. 
a  ijuoi  bou  disserter  sur  I'arbitrairc  i 

Le  conseil  parait  prdtendre  que  ce  (pii  est  fiiit  par  un  gouveruement  quelconqin-  >''r. 
dehors  des  provisions  iViine  loi  vcrite  est  I'arbitraire. 

Je  comprends  cette  idee  (piand  on  parle  d'un  gouveruement  ri'ritablcmviit  constitii- 
tionnel,  comme  I'ltalie,  comme  le  Br<58ii,  comme  la  Suisse,  comme  les  Etats-Unis.  V:iv-^ 
ces  pays,  les  fonctiouuaircs  execntii's,  Koi,  Empereur,  Pri^sideut,  u'importe  le  titre,  et 


MR.    GUSHING  S    .SLTPLEMENTAL    AROUMKNT. 


497 


hIi'.^  is  Want- 

liincnts  nIk- 
ti  so  tar  as 
»•  ill  the  due 

lin  his  >uli- 
at  a  nation, 
iholc  nation 

roai  aiiotlni 
;hout  re^anl 

lOSSCSSCS  t'oi' 

■  the  Unit'd 

statutes,  ami  i^ 
jliiig  us  to  i>ii- 
ity.  Wi-  aic  :i' 
iu"(l  oiUMiitunity 
ay  l)t'  **iO<t  to  1'  • 
us  act.  au(\  ^i-w- 
a  fault  of  siil- 

:;rcat  Britain 
rary  powi-r .' 

■  Govornnit-nt 

joiistitntional 
r  the  United 
Kiiictionarics. 
the  title,  and 


the  lej^Lshitivo  functionaries,  liavo  each  their  duties  and  their  jtowcrs 
traced  beforehand  by  a  written  national  compact.  There,  when  the 
Government,  that  is  to  say,  the  totality  of  the  national  powers,  acts,  it 
acts  in  conformity  with  the  compact,  with  the  Constitution,  and  by  means 
of  the  functionaries  specially  desi/jnated  according  to  the  Constitution. 
But  where  is  one  to  find  the  Constitution  of  England  ?  No  one  is  ignor- 
ant that  what  in  England  is  called  "the  Constitution"  is  but  the  com- 
l)ination  of  the  legislative  acts,  of  the  recognized  customs,  usages,  and 
traditions,  and  of  the  i)ublic  oi»inion  of  the  Kingdom.  For  the  execu- 
tive administration  there  is  the  Crown,  represented  by  its  responsible 
Ministers,  who,  in  these  latter  times,  have  arrogated  to  themselves  the 
title  of  "Government;''  there  is  the  J'arliament,  which  makes  laws  and 
controls  the  Ministers,  and,  through  them,  the  Crown ;  there  are  the 
Courts,  which  interpret  the  written  laws,  and  which  also  interpret  the 
customs,  usages,  and  traditions  having  the  force  of  law  ;  and  for  public 
opinion,  wliy,  there  are  the  newspapers  of  London. 

Now,  the  Ministers,  as  holding  powers  from  the  Crown  ajid  Parlia- 
ment, declare  war,  acknowledge  foreign  belligerence,  conclude  Treaties, 
ii'cognize  new  States,  in  a  word  supervise  and  direct  the  foreign  rela- 
tions of  the  kingdom. 

Is  that  arhitmry  poirer*  I  <leny  it.  It  is  the  law  which  has  been 
estaldished  by  tradition,  just  as  the  existence  of  I'arliamenI,  the  right  of 
primogeniture,  the  privileges  of  the  peerage,  have  been  established. 

But  the  act  of  a  declaration  of  war  by  the  Crown,  or  the  conclusion  of 
liny  Treaty,  i)rofoundly  affects  private  interests.  .Vmong  the  least  of  its 
t'ftects  would  be  that  of  imposing  obstacles  to  the  departure  of  merchant- 
vessels  from  the  ports  of  the  kingdom.  Nevertheless,  in  this  contro- 
versy, we  are  asked  to  believe  that  it  would  be  arbitrary  to  detain  ])ro- 
visionally  a  merchant-vessel  for  the  object  of  a  simple  inquiry  caused  by 
j^uspicions  as  to  the  legality  of  its  equipment  and  destination. 

Look  at  the  power  of  Parliament, — there  you  have  arbitrary  i)ower. 
A  Parliament  hehl  to  be  omnipotent,  which  can  banish  and  even  try  a 


11 


l('u;isti's  (Ic-  ;:. 
lie  souvi-raiint  • 

|s  snjets  tlaii~  '<^ 
II  (hius  sou  coi  v- 
[il  la  uuiltraitaii 

le  raocoiui>li>-'  ■ 
Itie   les  nioyt".:- 


hits,  et  c"e»t  .lu 
1  lie  nous  uietti  ■ 
lativt'S  tie  ti-  <1<- 
(ne,  (luauil  uon^ 
lout  autre  <;e'i"- 
I'uno  neglij!;eiK«; 
dc  geueralit"- 
|i  peut  inovtiiii 

'ailmet.    A!"i-' 

riuelcJUiine  <"■'- 

|/cmt'ii<  const  iti!- 

its-lJuis.    D:>'!^ 

Tortc  le  title,  et 


ksfoiictiouuaires  loj^islatifs,  out  chacuu  leurs  devoirs  et  lenrs  pouvoirs  tractSs  d'avance 
I'ar  nil  pacte  national  oerit.  ^M,  (luaud  le  (/oiiviriicmviit, — c'est-a-dire,  la  totalite  des 
lioiivoirs  uatiouaux, — agit,  it  ayit  conforiiK^ment  au  paete,  a  la  constitution,  et  j»ar  I'in- 
ttiuiediaire  des  fonctionnaires  8i»<^cialenient  d^^sijjnds  d'apres  la  Constitution.  Mais  oil 
iiouverla  constitution  de  I'Augleterre  ?  rersoune  n'ignore  (juo  co  qii'eu  Augleterro  on 
aiipelle  "la  constitution"  n'est  que  I'enseniblo  des  actes  Icgislatifs,  des  coututnes,  des 
usages,  et  des  traditions  reconnues,  et  de  I'opiuion  publique  du  royaunie.  Pour  I'ad- 
miiiistration  executive,  il  y  a  la  Couronue,  represeutc^o  par  ses  ministres  rosponsables, 
Hii  dans  ces  derniers  temps  se  sont  arrogd  le  titre  de  "gouverneiuent;"  il  y  a  le  Parle- 
nicnt,  qui  fait  des  lois  ot  qui  controle  les  ministres  et,  par  eux,  la  Couronne  ;  11  y  les 
iiibunaux,  qui  iuterpretent  les  lois  i^crites  et  (jui  intiirpreteut  aussi  les  coutnmes,  les 
"Mges,  les  traditions  ayant  force  de  lois ;  et,  pour  I'opiuion,  il  y  a,  ma  foi,  lesjoiirnaux 
Je  Londres. 

Maiutenant,  les  ministres,  en  Icur  qualit<1  de  fondds  de  pouvoir  de  la  Couronne  et  du 
I'arleinent,  ddclarent  la  guerre,  eoustatent  la  belligdraiice  (^trangere,  concluent  des 
tiuitos,  reconnaissent  des  dtats  nouveaux,  entin,  surveillent  et  dirigent  les  rdlations 
txtf^iieuresdu  royaulne. 

Est-ce  li\  de  V  arbitral  re  f  Je  le  nie.  C'est  la  loi,  qui  s'est  «^tablic  par  tradition,  pr<5- 
cisenient  comme  se  sont  etablisrexistence  du  Parlement,  le  droit  de  primogeniture,  les 
privilc^gesde  la  pairie. 

Mais  I'acte  d'une  d«?claration  de  guerre  par  la  Couronne,  ou  la  conclusion  d'un  trait<^ 
'I'lelconque,  trouble  profondcment  les  intdrets  particuliers.  Parmi  les  raoiudres  de  ses 
ftietH,  serait  celui  d'imposer  des  entraves  h  la  sortie  des  vaisseaux  marcbands  des  ports 
'lu  royaunie.  Cependant,  dans  cette  controverse,  ou  nous  invite  h  croire  qu'il  serait 
ofiitraire  de  faire  ddtenir  provisoireraent  un  vaisseau  niarchadd  pour  les  fins  d'une 
'iniple  enquete  motiv^e  par  des  soup^ons  sur  la  l<Sgalit6  de  son  ^quipcmeut  et  de  sa 
tlestinatiou. 

■Le  pouvoir  du  Parlement,  voili  I'arbitraire.    Un  Parlemeut  censd  omnipotent,  quL 

32  c 


■jj4  -■•"    ■"■!■■■ 


498 


.SrPPLEMEXTAIiV    ARliUMKXTS    AND    STATKMENTS. 


I' 


.«• 


M 


Kiiif;,  iiitrodiu'o  a  new  dynasty,  abolish  lioioditary  surcessloii  and  all  its 
lejfislativc  and  Judicial  iniv ilexes,  clianfjfe  the  leliyion  of  the  State,  con- 
liscate  the  goods  of  the  Chnreh,  tak<i  from  the  Crown  the  administration 
of  the  international  relations  of  the  country, — is  not  this  the  reij^n  ot 
despotism  i 

Jint,  up  to  the  juesent  time,  rarliament  has  not  taken  from  the  Crown, 
that  is  say  from  the  Ministers,  the  dir(M!tion  of  foreifjji  affairs.     It  iniiy 
arropite  to  itself  a.  i>art  of  that  direction,  as  has  been  done  in  other  con 
Htutional  countries;  but  as  to  assuming  it  entirely,  that  would  be  diili- 
cult  in  the  present  state  of  Europe. 

1  honor  I'higland.  The  substance,  and  even  the  forms  of  the  institu 
tions  of  the  United  States  are  borrowed  from  the  nu)ther-country.  We 
are  what  we  are,  first  of  all,  because  we  are  of  Jiritish  race,  hmguiiKC. 
religion,  genius,  education,  ami  character.  I  have  studied  England  at 
Iionie,  in  her  Colonies,  in  her  establishments  beyond  the  seas,  and,  above 
all,  in  her  magnificent  Indian  Euipire.  She  is  rich,  great,  and  powerful 
as  a  State,  not,  in  my  oj)inion,  because  of  the  subjection  of  her  ^Ministers 
to  the  scrupulous  and  daily  criticism  of  the  House  of  Commons,  but  in 
spite  of  it,  as  I  remember  to  have  heard  said  by  the  late  Lord  Palmer 
ston.  It  is  not  the  strong,  but  rather  the  weak  side  of  her  Government, 
as  one  sees,  moreover,  in  tlie  p.res«Mit  controversy.  It  is  not  worth  while, 
therefore,  to  deny  to  the  Crown  executive  powers  necessary  for  the  peace 
of  the  kingdom ;  nor,  in  the  ])resent  case,  to  raise  cries  of  arbitrary 
power,  in  the  face  of  the  admitted  omnipotence,  that  is  to  say,  of  tlie 
absolute  despotic  power  of  Psirliament,  whose  real  force  tends  every  day 
to  concentrate  itself  more  and  more  in  the  House  of  Commons  alone. 

Such  a  Constitution,  so  undefined,  continues  to  work,  thaidcs  above 
all  to  the  practical  good  sense  of  the  English  people,  to  their  wholesome 
respect  for  traditions,  to  their  special  talent  for  government,  to  their 
praiseworthy  national  pride,  and  to  the  elasticity  of  thfir  political 
forms,  which  allows  of  every  one  being  received  and  placed  i  'i  the  govern- 
in<i  class,  who,  no  niatter  where  within  the  limits  of  the  cnpire,  is  dis- 
tinguished by  eminent  qualities. 


pent  cliasser  et  nn'ine  Jiiger  im  roi,  iiitrodnire  une  dyiiastie  noiivelle,  .al»olir  I'liorc^dito 
et  tons  ties  priviloges  logial.atifH  et  Judiciiiires,  changer  la  religion  <le  I'otat,  confiscjiici 
1«'8  bicns  de  l'dgliHe,enlever  a  la  C'onroiine  I'adiniiiistiatioudes  relations  luternatiouaks 
dn  pays, — n'est-ce  pas  le  legne  do  I'arbitraiie  ? 

Mais,  jusqn'ii  prc^sent,  le  Parlenient  n'a  pasenlev<i  h  la  C'onronne, — c'est-iV-dire,  aiix 
uiinistres, — la  direction  des  affaires  dtrangeres.  II  pent  s'arroger  une  partie  de  rette 
direction,  coninic  ou  I'a  fait  dans  d'antres  jiays  constitutionnels  ;  niais  qnaut  a  serivnu- 
ger  entierernent,  ce  serait  difficile  dans  l'<^tat  actnel  do  I'Enrope. 

.J'lionore  I'Angleterre.  Le  fond  et  memo  la  forme  des  institutions  des  fitats-Unis  soiit 
empruntes  a  la  niere-patrie.  Noussoiunies  ce  (jue  nous  soniines,«rabord  parco  ((iie  nous 
soiunies  de  race,  de  langne,  de  religion,  de  g«5nio,  d'education  et  de  caractere  britiin- 
niqnes.  .J'ai  <^tudi^  I'Angleteire  chez  elle,  dans  s«!s  colonies,  dans  ses  dtablisseuaiits 
d'ontre-nior  et  surtout  dans  son  niagniti([ue  empire  des  Indes.  Elle  est  riche,  gramle, 
jtuissante,  conime  dtat ;  non,  selon  inoi,  a  cause  de  la  sujdtion  de  ses  niinistres  a  la 
critique  m<^ticulonso  et  journaliere  de  la  Cliambre  des  communes,  inais  en  depit  do 
cela,  comnie  je  me  souviens  do  I'avoir  entendu  dire  par  feu  Lord  Palmerston.  Co  iiVst 
pas  le  cCtt6  fort,  c'est  plutOt  le  cAtc  faible,  de  son  gouvernenient;  on  le  voit  dn  reste  dans 
cette  controverse.  II  ne  vaut  done  i)as  la  peine  de  r<?*"'!ser  h  la  Couronno  des  poiivoirs 
exdcut'fs  uecessaires  a  la  paix  dn  royaiune,  ni  dans  lo  cas  actnel  di  crier  a  I'arbitraiie, 
en  prdseiif-o  de  I'omuipotenco  reconnue,  c'ost-a-dire,  de  I'arbitraire  .ibsolu  du  Parlemcut. 
dont  la  force  rdello  toud  chacjne  jour  a  so  concentrer  de  plus  on  plus  dans  la  stuk  j 
Chauibro  des  coniniuuos. 

Une  telle  constituti,on,  aussi  inddterminde,  continue  de  fonctior.ner,  grace  siu'tout  an  j 
bon  sens  pratique  du  peujde  anglais,  a  son  respect  salutaire  des  traditions,  ii  son  gouii 
gonverneuiental  particulier,  a  sii  louable  lierte  nationale  et  a  l'<:lasticit6  «le  ses  t'oriiK!* 
politiques, — dlastititd  qui  jierniot  dc  recevoir  et  de  placer  dans  ]  i  alaHse  ijourcrnaiiteUmt  \ 
ce  qni,  n'imrorte  oil,  dans  les  limites  de  I'enipire,  se  met  en  relief  par  des  (inalltt'SHiiij 
ueuttis. 


wn. 


ITS. 

on  and  all  its 
lie  State,  coii- 
(Iministratioii 
8  th<i  leij^ii  of 

>ni  thefiowii, 
fairs.  It  may 
a  in  otlier  con 
,vonl(l  hv  tlilli- 

of  tlic  iustitn- 
country.    Wi- 
ace,  lantiua^if. 
?i\  Enjiland  at 
L'as,  and,  above 
t,  and  powort'ul 
f  her  Ministers 
nnnions,  bnt  in 
3  Lord  rainier 
;r  Government, 
ot  worth  while, 
ry  for  the  peace 
es  of  arbitrary 
i  to  say,  of  the 
tends  every  day 
inions  ah)ne. 
:,  thanks  above 
their  wholesome 
•nme'nt,  to  their 

thf'ir  political 
edi'ithejforeni- 

cnpire,  is  dis- 

lie,  abolir  I'lioif^Aito 
he  I'otat,  conlistiui'i 
[ionsiutormitiouaks 

.,— c'est-iVdire,  aiix 
[iiiic!  partie  de  iitte 
lis  tiuaut  itserinio- 

Itlesfitats-Uiiissniit 
l)oid  yarce  (lue  nous 
\e  caractere  bntan- 
I  ses  dtablisseuieiits 
|l.;  est  riclie,  gramle. 
808  ministres  a  a 
L  iiiais  eu  dfiint  tli' 
llinerston.    Ce  lu'st 
Be  voit  (lu  teste  tlaiw 
lironne  ties  poiivoiis 
[cvieriiraibitiaiif, 
jsolii  (In  I'arleiucut. 
plus  dans  la  seule 

ler,  grace  surtout  a" 
Witioiis,  i\  soil  goiii' 
J8ticit6  lie  ses  foinies 

lar  (lea  (lualitos  cim- 1 


>IK.    CUHIIINOS    SUl'l'LKMKNTAL    AKGLMKNT. 


499 


Thus  liberty  and  order  are  reconciled.  Hut  liberty  and  order  equally 
ie(|nire  tliat  tlie  public  peace  should  not  be  disturbed  by  the  intrigues 
1111(1  mercenary  interests  of  individuals  for  wane  of  a  little  re[)re8sivo 
power  placed  in  the  hands  of  the  Crown. 

Parliament  in  its  omnipotence  mij»ht  easily  have  remedied  the  defects 
of  the  municiiial  law  if  it  had  chosen.  It  has  since  done  so.  JJut  it  did 
not  do  it  in  proper  time,  and  this  it  is  whi«!h  constitutes  a  failure  in  the 
duo  diligence  of  tln^  Treaty. 

America,  on  the  contrary,  has  several  times  done  this  at  the  right 
moment,  in  the  interests  of  her  friendly  relations  with  (Jreat  Jiritain. 

THE  RUSSEAN  SHIPS. 

The  Ilritish  Counsel  ([uotes  and  approves  the  oi)inion  of  the  liiiglish 

.liulges  given  in  Fortescue's  lleports.     They  were  of  opinion     ,, f  ,|„^  ,i,„. 

"that  the  Crown  had  no  power  by  law  to  prohibit  the  build-  "'"""" 

ing"  of  ships  of  war,  or  ships  of  great  force,  for  foreigners  in  anj'  of  His 

Majesty's  dominions."    (P.  18.) 

Two  Judges  had  given  this  opinion  in  1713;  other  Judges  (it  is  not 
said  how  many)  gave  the  same  opinion  in  1721.  The  vessels  were  built 
for  Russia,  and  contrary  to  the  remonstrances  of  Sweden. 

In  1713  there  was  open  war  between  Kussia  and  Sweden.  It  was  four 
years  after  the  battle  of  I'ultowa.  Charles  XII  had  taken  refuge  in  Tur- 
key, and  the  Sultan  was  in  vain  endeavoring  to  persuade  him  that  he 
ought  to  return  to  his  own  States. 

The  Elector  of  Hanover,  who  had  become  King  of  England,  had  Just 
taken  part  in  the  spoliation  of  Charles  XII.  Kussia  had  conquered 
Finland. 

In  1714  the  Itussians  burned  and  destroyed  the  Swedish  fleet  oft'  the 
Island  of  Aland.  If  it  is  true  that  the  Czar  had  had  vessels  of  war  built 
ill  England,  there  is  no  doubt  that  the -e  vessels  contributed  to  the  vic- 
tory of  Aland. 

Conclusion :  that  in  1713  the  interests  of  the  Elector  of  Hanover 


I 


Aiiisi  se  tioiiveiit  c<nicili(>s  la  liberty*  et  I'ordrc.  Mais  la  libeit*^,  autaiit  quo  I'ordre, 
Jemaiule  ((lie  la  i)aix  publi(iiio  iie  soit  pas  troubl(?e  par  les  intrigues  et  les  iutt5rets 
merceuaiieN  des  iudividus,  faule  d'uu  pen  de  pouvoir  i(^pies8if  couti(^  aux  mains  de  lu 
Courouue. 

Le  I'ailement  dans  son  oninipoteuco  aurait  bien  pu  reni^dier  aux  d^-faiits  de  la  loi 
nuHiicipale,  s'il  I'avait  vouln.  II  I'a  fait  depuis  Jors.  Mais  il  ne  I'a  pas  fait  eu  temps 
utile,  et  c'est  la  ce  (jui  constituo  un  mauqiiement  aux  dues  diligences  du  tiait<?. 

L'Aui^rique,  au  contraire,  I'a  fait  plusieurs  fois  eu  temps  utile,  dans  riutoiet  de  ses 
relations  amieales  avec  la  Giaude-Bretajjue. 

LKS   VAISSEAUX   iJ'JSSES. 

Le  conseil  cite  et  approuve  I'opinion  des  juges  anglais  dans  les  rapi)orts  de  For- 
tfsciie.  lis  furent  d'avis  "  quo  la  Couionue  u'avait  pas  le  pouvoir,  selon  les  lois,  de 
ilcfeudre  la  construction  des  navires  de  guerre,  on  des  navires  (l'"no  graude  force,  pour 
lecompte  des  (Strangers  dans  un  des  ("Uits  de  sa  Majestd,  (p.  I(.  i 

l)t'ux  juges  avaient  dmis  cet  avis  en  1713;  d'autres  juges  »,!  ■.  ao  dit  pas  combien) 
[  •'niirent  le  nidme  avis  en  1721.  On  construisit  les  vaisseaux  pour  la  Kussie,  et  eu  oppo- 
j  sition  aux  reniontrances  de  la  Suede. 

En  1713,  il  y  avait  guerre  ouverte  sntre  la  Russie  et  la  Suede.  C'^tait  quatro  ans 
»pr^8  la  bataille  de  Pultava.  Cli.arles  XII  ij'<5tait  r6fugi6  en  Turquie,  et  le  Sultan 
Sffforyait  en  vain  de  lui  persuader  «iu'il  devait  rotourner  dans  ses  propres  dtats. 

L'fiiecteur  de  Hanovre,  devenn  Roi  d'Angleterre,  venait  de  prendre  sa  part  dans  les 
1  ^<^pouille8  de  Charles  XII.    La  Russie  avait  conquis  la  Fiulande. 

En  1714,  les  Russes  brftlferent  et  d«5tnii8ireHt  la  flotte  su^doise  devant  I'lle  d' Aland. 
Pilest  vrai  (lue  le  Czar  avait  fait  constrnire  des  vaisseaux  de  guerre  eu  Angleterre,  il 
ptliors  de  doute  que  ces  vaisseaux  contribuferent  tl  la  victoire  d' Aland. 
Conclusion  :  en  1713  les  int^rfits  de  I'Electeur  de  Hanovre  le  portaieut  tl  favorlser, 


At 


500 


SIPI'LKMKNTARY    ARGIMENTS    AND    STATEMKM'S. 


i;-:;'-' 


iiuliico<l  liiin  to  favor,  or  at  least  not  to  ojiposc,  tlu'  policy  of  tli<» '  i  • 
and  the  opinion  of  tiie  two  Jiuly:e.s  at  that  period  were  unottieial  o  .is 
of  no  value. 

As  to  the  opinion  of  17l*.'»,  the  wind  then  blew  the  otiier  way:  Kn^r. 
land  was  in  favor  of  Sweden  ;  the  peac(^  of  Nenstadt  had  just  been  (.on. 
eluded;  and  the  construction  of  vessels  of  war  for  the  service  of  the 
Czar  was  no  lonjjer  contiary  to  European  international  law. 

To  return  to  the  jpiestion  of  the  power  of  the  (.'rown.  Were  tlicy 
armed  or  unarmed  vessels  which  were  being  built  for  the  Czar  ,'  Ills, 
tory  is  not  explicit  on  this  i)oint.  In  the  former  ease,  there  would  Jiav*- 
been,  in  171.'5,  open  violation  of  international  law.  There  is,  then,  reason 
to  believe  that  these  vessels  were  not  armed. 

The  lieport  speaks  of  "  Jlis  M<ijvntifH  (hminiom.^^  What  (himinioiis? 
England  ?     I  doubt  it. 

Now  suppose  that  from  1713  till  the  Act  of  181!),  there  was  in  Eiiyliiml 
HO  law,  no  i)Ower  of  coercion,  cai)able  of  i)reventing  the  building,  t'(|ni|i. 
ping,  arn)ing,  and  sending  IVnth  of  vessels  of  war  intended  to  lif;|it 
against  a  State,  the  friend  and  ally  of  ICngland. 

Then,  during  that  great  eighteenth  century,  and  during  no  one  can 
tell  how  many  centuries  previous,  England  had  been  entirely  powerless 
to  defend  her  own  sovereignty,  and  to  protect  her  friends  against  tlif 
crimes  of  foreigners  making  her  territory  the  base  of  their  belligerent 
operations. 

I  do  not  believe,  I  will  never  believe,  that  such  was  the  national  inipo 
fence  of  England,  and  1  do  not  understand  how  any  one  can  attempt  to 
push  the  exaggeration  of  i)rivate  liberty  so  far  as  to  annihiliite  all 
national  sovereignty,  and  to  make  p]ngland  the  involuntary  aeconipliLc 
of  all  the  maritime  wars  of  Europe. 

Conse«iueutly,  I  leave  out  of  the  question  the  opinions  reported  by 
Fortesci  e.  It  is  not  my  business  to  fathom  this  m\  *^ery,  but  assuredly 
a  mystery  there  is  ;  and  I  beg  the  Arbitrators  to  '  i  good  as  to  ooii 
suit  the  numerous  contrary  opinions  collected  in  ;  (Ij)  annexed  to 

the  Argument  for  the  United  States. 


w 


on  tout  an  iiioins  h  no  \m\h  «Mitrav(ir,  la  i»olitii|iie  diiCzar;  ct  I'avis  des  deux  jiigo 
d'aloiH  otaicnt  den  aviN  ollieioux,  saiiN  valtjiir  aiieiiiio. 

Qiiaiit  ji  I'avJM  do  It'i'A,  lo  vinit  avait  alors  touriK^ :  rAiiglotorn!  favorisait  la  Siicili'; 
la  paix  do  Nenstadt  vonait  d't^tre  conclue  ;  et  la  construction  tics  vaisseanx  dc  yuciR' 
pour  Ic  service  (In  Czar  ii'ctait  plus  en  conflit  avec  le  droit  des  gens  de  I'Euioiic. 

Kevenons  a  la  question   du   ponvoir  de  la  Conronne.    I^taient-ce  des  vaisscaiix 
arnicas  en  guerre  on  des  vaisseaux  non  arnit^s  en  guerre  (pt'on  construisit  jmnr  !r 
Czar  ?    L'liistoire  n'est  pas  ex}dicito  sur  co  ]>oint.     Dans  le  i)reniier  cas,  il  y  aiiiait  (ii.  j 
en  1713,  violation  nianifeste  du  droit  des  gens.    Done,  il  y  a  lieu  de  croire  ijiii'  as 
vaisseaux  n'ctaient  pas  armds  en  guerre. 

Le  rapport  parte  "  den  elats  dc  xa  Majeste."   Quels  t^tats  ?  L'Angletorre  ?   .J'en  douto. 

Or,  supposous  quo,  depuia  1713  justpiTi  la  loi  de  181'J,  il  n'y  ait  on  en  Anglettire 
ancune  loi,  aucun  pouvoir  coercitif,  capables  d'einpecher  dans  ses  ports  la  construction, 
I'dquipenient,  I'arnienient  et  I'expdditiou  des  vaisseaux  de  guerre  destines  a  couibattre  i 
contre  un  otat  ami  et  alli6  de  I'Angletorre. 

Alors,  durant  ce  grand  dix-hnitiemo  siecle,  et  durant  on  ne  salt  conibien  de  sii'clts  I 
antdrieni's,  I'Angleterre  aurait  v<?eu  dans  nu  «^tat  de  complete  impuissance  a  d^feiidre  I 
sa  propre  souvorainotc  ot  it  prot<^ger  ses  amis  coutre  les  attentats  des  strangers  (|iii 
faisaient  de  sou  territoire  la  base  de  leurs  operations  belligdrautes. 

Je  ne  crois  pas,  je  ne  croirai  jamais,  que  telle  ait  it6  I'impuissance  nationale  tie  | 
I'Angleterre,  et  je  ne  compreuds  pas  qu'on  veuille  pousser  I'cxagdration  de  la  liberti> 
privee  jusqu'au  point  d'annihiler  tonte  souverainetd  nationale,  et  de  faire  de  rAiigii-j 
terre  la  comjilice  involontaire  de  toutes  les  gnerres  maritimes  de  I'Europe.  I 

Par  con8*S(iuent,  j'dcarte  de  la  question  les  opinions  rapportdes  par  Fortescue.  Jc| 
n'ai  pas  h  p6n6trer  ce  mystfere ;  mais  assurduient  il  y  a  un  my&tere  ;  et  je  prie  Ich  arl 
bitres  de  vouloir  bien  consnlter  les  nombreux  avis  coutraires  rassembl<58  dans  la  notej 
(B)  annexde  auplaidoyer  des  Etats-Unis. 


T^^ 


MU.    CUSHINCiS    SUPPLKMENTAI.    AROUMENT. 


501 


[)ns  rcportod  by 

y,  but  as.sun'tUy 

<;oo(l  as  to  coll- 

!  (li)  juniexeil  to 


LAMS  or   FOHEIGN  COINTIJIEH. 

Tlie  IJiitisli  Case  liud  aninncd  tliat  tli(^  irnitctl  States  and  (licat 

IJritaiii  wore  the  only  two  countries  haviuff  nuinieipal  laws    ,„„„„„„,„,. , 

titt<'d  to  secure  the  observan( e  of  neutrality.    In  reply  to  "f"t,.r.nn„ir,^». 
tliis  assertion  we  have  (pioted  and  eoniniented  on  the  laws  of  various 
forei{;n  countries,  and  the  observations  of  jurists  of  those  countries ; 
and  these  (luotations  prove  that  such  laws  exist  everywhere  throughout 
Kiirope  and  America. 

The  IJritish  Counsel  disputes  this  proposition  on  the  ^rouiul  of  the 
kerity  of  nmst  of  these  foreif^ii  laws,  and  of  the  imperfect  Judynu'ut  of 
a  Netherlands  statesman,  witliout  closely  exaniininjif  the  text  of  these 
laws,  or  the  commentaries  of  native  jurists  which  establish  their  true 
nature. 

Ill  this  the  IJritish  Counsel  misapprehends  the  characteristic  quality 
of  all  the  laws  of  these  countries,  I  mean  their  brevity,  when  compared 
with  the  laws  of  Great  Britain,  and  of  her  imitators,  tho  United  States. 

In  all  the  laws  called  "  neutrality  laws,"  of  whatever  country,  there 
are  two  principal  objects  :  first,  to  defend  the  national  territory  against 
any  encroachment  on  the  part  of  foreigners  ;  and,  secondly,  to  prevent 
iiulividuals,  whether  natives  or  foreigners,  from  committing  on  their 
own  authority  acts  of  hostility  to  foreigners  on  the  national  territorj-, 
wiiich  might  expose  the  State  to  a  declaration  of  war,  or  to  reprisals  ou 
llie  part  of  another  State. 

Such  are  the  provisions  of  many  codes ;  as,  for  example,  those  of 
France,  Itiily,  the  Netherlands,  I'ortugal,  Spain,  and  Belgium. 

It  is  obvious  that  these  provisions  of  the  jienal  codes  of  the  different 
countries  of  Europii  comprise  the  same  subject,  and  have  the  same 
objects  as  the  English  and  Americai  law  ;  omitting,  however,  the  details 
of  procedure.  But  in  France,  in  Italy,  and  elsewhere,  the  rules  of  pro- 
cedure are  to  be  found  in  the  codes  of  pro(!edure,  and  it  becomes  useless 
and  inexpedient  to  repeat  these  rules  with  regard  to  each  article  of  the 
penal  code. 


ivis  des  deux  ju^'i'^ 


jrre  !    J'en  doute. 


i)i:.s  i.Dis  i>i;s  I'AYs  lait.vNtiKit.s. 

Lc  iiK'moiie  do  la  Cjiraiide-lJretaKi>»^  .avait  a(Tliiin(^  (ine  le.s  I^tats-Uiii.s  ct  la  Graiide- 
ISrctajfiK!  soiit  les  deux  seiils  p.'iy.s  qui  aioiit  des  lois  iminicipaleH  propres  a  assurer  I'ob- 
Mivatioii  de  la  iioiitralite.  Eii  rosponso  a  cetto  assertion,  nous  avous  cite  et  com- 
meiite  les  lois  de  divers  pays  etran^fers  et  Ics  observations  des  Juristcs  de  ces  pays  ; 
It  ces  citations  doniontrent  <ine  de  tclles  lois  existent  partont  en  Europe  et  en  Anitl-rifjue. 

Le  eonsoil  conteste  cette  proposition  eu  se  fondant  sur  la  hrihrtc  do  la  plupart  do 
CIS  lois  dtrangi-res,  et  sur  I'apprc-L'iation  iinparfaito  d'un  liomnie  dVtafc  neerlandaia, 
sins  examiner  do  pres  le  texto  do  cos  lois,  ainsi  que  lea  conuuentairos  de  juristes  ua- 
liiinaux  ([ui  en  etablissent  la  veritable  nature. 

En  ceci,  le  conseil  He  nidprend  sur  la  qnalitd  cararteristique  do  toutes  los  lois  de 
I'M  pays  ;  jo  veux  dire  ienr  brieveto  coinparativenient  aux  lois  do  la  Graude-Bretague 
it  lie  ses  iiuitateurs,  les  Etats-Unis. 

Dans  toutes  les  lois  dites  "  do  noutralite,"  dans  qnelquo  pays  ((uo  ce  soit,  il  y  a 
ik'iix  objets  capitanx :  preniieronient,  defondre  le  torritoire  national  contro  tout  oiu- 
pieteuient  de  la  part  desotrangers  ;  et,  secondouient,  en.peclier  des  individus,  nationanx 
III!  strangers,  de  comniettro  de  leur  i)ro])ro  autoritc^  <bM  actes  d'iiostilito  otrangi-re  sur 
li'  territoiro  national,  pouvant  exposer  l'6tat  a  une  declaration  de  guerre  ou  a  des  re- 
pif'siiilles  de  la  part  d'un  autre  etat. 

Telles  sont  les  previsions  do  idusienrs  codes,  comnie,  par  exeiuplo,  ceux  do  France, 
il'Italie,  des  Pays-Bas,  de  Portugal,  d'Espaguo  et  do  Belgi(|Ho. 

II  saute  aux  yeux  (jue  ces  previsions  des  codes  penaux  des  divers  pays  de  rEnrope 
fmbrassent  lo  nieme  snjet  et  ont  les  monies  objets  que  la  loi  anglaise  ot  que  la  loi 
amdricaine,  en  omettant  tontefois  les  d<^tails  de  procedure.  Mais,  en  France,  eu  Italia 
ct  ailleurs,  on  trouve  les  regies  de  procedure  dans  lea  codes  do  {irocdduro,  et  il  devient 
inopportnn  et  inutile  de  repeter  ces  rf'gles  a  propos  de  cliaquo  article  du  code  penal. 


!:^T«'1 


jr 


tfi 


502  SITPLEMENTARY   AKGl'MKNTS    AND    STATEMKNTS. 

Tlio  Xetlierlaiuls  ^Minister,  in  the  tlispatcli  referred  to,  poiiitn  out  tlie 
neutrality  law  of  his  country  after  haviu'?:  inconsiderately  said  that  no 
such  law  existeo.  It  is  only  on  a  quibble  of  words  that  the  Ihiti.sh 
Counsel  bases  the  extravagant  inferences  to  which  this  dispatch  has 
given  rise.  But  the  Netherlands  law  is  copied  from  the  French  I'oual 
Code.     It  is  impossible  to  mistake  its  tenor  and  signification. 

Jforeover,  this  law  is  commented  on  at  length  by  French  writers  of 
undisputed  authority,  Dalloz,  Chauveau  and  Helie,  Bourguignon,  Car- 
j'ot,  and  others,  who  all  express  themselves  entirely  in  the  sense  of  our 
Argument.  All  this  will  be  found  in  the  documents  annexed  to  our 
Counter  Case.  And  we  have  added  an  opinion  by  the  late  M.  Berrver, 
which  shows  that  these  articles  of  the  French  code  apply  to  certain 
proceedings  of  the  Confederates  in  France  with  regard  to  the  equiji- 
ment  of  vessels  of  war,  ])roceedings  entirely  identical  with  those  which 
took  place  in  England,  (Counter  Case  of  the  United  States,  French  trans- 
lation, ]).  41)0.) 

In  support  of  this  conclusion  we  have  cited  decisiojis  of  the  French 
Courts. 

It  is  the  same  with  Italy :  we  have  (pioted  Italian  commentators  in 
sui)port  of  our  proposition,  and  these  commentators,  in  explaining  thcii 
own  law,  adopt  the  conclusions  of  the  French  couDnentaiors. 

The  same  ideas  are  foun<l  in  the  Spanish  and  Fortuguese  commouta- 
tors  on  the  subject  of  the  similar  provisions  of  their  codes.  AV(;  cite 
Silva  Ferrao,  for  I'ortngal,  and  Pacheco  and  (lomez  de  la  Serna,  for 
Spain,  {nbi  suj^ra,  pp.  ."j.^i,  570.)  The;^^  commentators  reason  as  well  as 
we,  it  seems  to  me,  on  the  subject  of  military  expeditions  and  priva- 
teers. I  do  not  understand  this  contemptuous  tone  on  the  subject  ol 
foreign  laws.  It  cannot  be  believed  that  all  juridical  knowledge,  all 
morality  o+'  thought  in  legislative  matters,  are  the  exclusive  and  abso- 
lute property  of  England  and  the  United  States. 

The  liritish  Counsel  passes  very  lightly  over  the  laws  of  Switzerland 
and  Brazil. 

On  a  study  of  the  laws  of  Brazil  it  is  found  that  the  definitions  of 


]     Si 


Eli  ministr*!  iioorlandiiis,  <l;ins  la  (loprcho  {■iti''0,  8i};ii;ilo  la  loi  do  m-nfmlito  di."  son 
pays,  aiiiin  avoir  dit  iiRonsidi-rt'iiit'iit  (|n'il  H'oxistaifc  pas  d<i  loi  paicille.  Ce  ii'cst  (|iii' 
8ur  uno  ('(luivoinH'  d(!  inotstiiu!  husonseil  I'oiido  les  indii(;tioiist'xtiava;^aute.s  aiix([iu'llf) 
cettu  dt']U'ch»^  a  doiino  lieu.  Mais  la  loi  niieilandaiso  <'st  t;oi)io(^  snr  Ic  code  poual  Iran- 
\'aiH,    11  fst  inipoMwiblo  do  so  nioproiulre  siir  sa  tonoiir  ct  sa  rti<5nili('iifi()ii. 

Do  i>hi.s,  ci'tto  loi  owt  loiiijiiciiioiit  ooniinoiitoe  i)ar  dos  ociivains  iV.iiivais  d'lino  aiitoiit>' 
iucoiito.st«'^o,Dallo/, Chauveau  et  llolii',  Bonrgnij^uon,  Caiiiotet  autie.s,  iiui  tousalmiiddiit 
dans  la  s«'Uso  do  iiotro  plaidoyor.  Tout  cehi  .se  tionvo  «!aii.s  Iok  pieces  justifiuativo 
.ijinoxees  a  notre  contre-meiuoire.  Et  nous  y  iivous  ajoutt'^  uue  consultation  dn  I'm 
M.  Ikniyor  ipii  deuumtre  (HU!  ces  articles  du  code  franvais  s'ap|di(|uent  a  certaiiK"^ 
meuees  des  confedeics  en  France  au  sn.j»^t  <lo  retiuipenient  <les  batinients  de  ;;ui'in'. 
nicin^'es  eu  tout  identiques  a  c«dles  ([iii  ont  en  lieu  en  Anj^loierre,  (coutre-nu^nioin;  (1(> 
fitats-rnis,  tr.  frauvaise,  p.  490.) 

A  I'appTii  do  cette  conelusi()u  nous  avons  citd  des  dc^cisions  des  tribnnanx'  franvais. 

II  en  est  do  nieuie  pour  I'ltalic! :  nous  avons  citi'"  dts  coinnientatcurs  italiens  a  rapimi 
ilenotre  pro)K)sition  ;  et  ces  couinientatenrs,  en  explitinant  leur  propre  loi,adojttoiit  lr< 
conclusions  ties  conuuentateurs  franvais. 

On  retrouve  les  nienies  idoes  dans  ies  conuuentateurs  espajjiioLs  et  portuj^ais  au  siijtt 
<le  prt^visions  semblables  do  lours  codes.  Nous  cilons  Silva  Ferrao,  pour  le  I'ortM;;;!!. 
et  Pacheco  ot  (loniez  de  la  Serna,  pour  rEspa<;ne,  {iibi  mnira,  ))p.  .">:{,  .ui').)  ('esniiii- 
nientateurs  raisonnent  aussi  bien  (pie  nons,  e«  me  senible,  au  sujet  dos  exiK^ditim^ 
luilitaires  et  des  corsaires.  Je  we  convois  pas  cos  allures  dodai;'ueuses  au  siijet  <li's  l"i' 
etraugeri'.s.  II  no  I'aut  pant  eroire  ([uo  tout  savoir  juridi([no,  (lutj  touto  nioralite  di- 
idees  lejrislatives,  soient  rapanage  exelusil'  et  absolu  de  rAngleterre  et  des  l^tats-I'iiiv 

]jO  conseil  f;lisse  trcs-lej^rreuicut  sur  W's  lois  de  la  Suisse  et  du  Hn'^sil. 

En  etudiaiit  les  lois  du  Bresil  on  y  tronve  que  les  deliiiilions  des  crimes  do  iclif 


rs. 

)int.s  out  the 
said  that  no 

the  British 
lispatcU  has 
rench  I'oual 
in. 

cli  Nvrltors  of 
juiguon,  (,'ar- 

sonsc  of  our 
iiexeil  to  our 
B  ]N[.  Berryor, 
ply  to  certain 
to  the  C(iuii>- 
I  those  wliich 
French  trans- 

)f  the  Trench 

imentators  in 
cphiining  their 

ors. 

;»se  coinineuta- 
(les.  AVc  cite 
B  hi  Soma,  for 
[\son  as  wcil  as 
nis  and  priva- 
the  subject  oi 
knowledge,  all 
usive  and  abso 

of  Swity-erland 

;  detinitions  of 


lUMitrnlito.  <lo  son 
iUe.     Ce  n'ost  <\nr 

,-illltCS  ilHX(|llfllt"> 

U;  code  pt'ual  i'riiii- 

joii-  .  . 

|i,ais  d'uno  autont' 
,(jiii  touaaluimlciit 
i'ii-ecs  jnstitii;iilivi'> 
DUMultation  <lo  tVu 

LucJit  a  cert  aim - 

Vnnt'uts  <lt'  K"''>r'' 
•outro-nu'iiioin!  tit- 

(mnaiix  frai(v»i^-  . 
Js  italieiiH  a  I'iipi'i" 
|,vcloi,a<loi)ttnitlt' 

1  i>()rtii}j;aiH  a\i  sti.jft 
[  nt.ur  hi  roitiij;:tt- 
l,:j,  r)7t).)  t't'Hit.m- 
let  (los  «)xi.<'-<litit.i^ 
Il-s  ail  sujot  <l'-s  l"i^ 
iontc  iiioralilt'  "!" 
,.t  doH  ntats-l'iib. 


MR.    CUSIIING8    SLTrLi:Mi:NTAL   ARGL'MKNT. 


503 


crimes  of  tills  category  are  more  comprehensive  and  more  com])lete  than 
those  of  the  laws  of  England,  {uhi  .supra,  p.  .V.)!.) 

Among  the  documents  annexed  to  the  British  Case  are  two  letters 
which  furnish  matter  for  retiection. 

Sir  A.  Paget,  British  Minister  In  Portugal,  acknowledging  the  n'ceipt 
of  a  disi)atch  from  the  Portuguese  Minister  of  State,  adds : 

Thcro  is  ono  jioint,  however,  upon  which  Her  Majesty's  (tovornment  are  most  de- 
sirous of  intbrinatioii,  to  wiiieli  your  Kxcelleney's  uott!  and  th(»  iiiclosures  it  contains 
(In  not  refer,  nanudy,  what  laws  or  rof^iili^^ions,  or  any  otlusr  moans,  are  at  tlio  disposal 
of  tlie  rortu<;u«^se  (Joverumeiit  for  prcvontiuf^  within  its  ttrrritory  any  acts  wiiicli 
would  l»e  violations  of  the  I'ortujjuestt  neutrality  laws,  ascontaiueil  iu  the  dticlarations 
of  neutrality  which  your  Kxcellency  has  transmitted  to  me  '! 

And  M.  Cazal  IMbeiro  rei»lies  as  ft)llows : 

III  reply,  it  is  iny  duty  to  state  to  your  Kxcellency  that  the  laws  and  re;;ulations  in 
the  matter  are  those  which  were  inclosed  in  my  note  of  the.  'J.'tth  of  that  nituith.  oi 
were  menlitmed  in  those  documents,  and  tint  means  of  execution,  in  the  case  of  aiiv 
violation  of  neutrality,  arit  (•riminal  ])ro(!ee(lin}>.',  the  use  of  force,  complaints  addressed 
to  forei;;n  (jioverniuents,  or  any  other  means,  in  order  to  meet  s<»me  particular  occiir- 
rcnctt. 

I  can  well  believe  it.  AVlunc  there  is  a  will  the  means  are  not  want- 
ing. 

The  British  Counsel  Is  mistaken  wlicn  he  maintains  that  the  United 
States  do  not  understand  these  laws,  so  clearly  commented  on  by  the 
writers  referred  to,  and  a])i)liod  by  courts  of  law  and  jurists  with  ;it 
least  as  much  Ic  nnlng  as  the  corresponding  laws  of  England. 

As  for  Switzerland,  we  have  collected  in  our  evidence  valuable  docu- 
)•'  'Its  showing  the  zeal  and  good-will  with  which  that  Bepublic  nuiin- 
tains  its  neutrality  in  the  mitlst  of  the  great  wars  of  Europe. 

I  beg  also  to  refer  to  the  explanations  of  the  law  of  Switzerland  by 
the  l'\'deral  Council,  on  the  occasion  of  the  Concini  affair,  to  show  that 
the  Counsel  of  Great  Britain  Is  utterly  mistaken  in  his  appreciation  of 


(■afej;i>:ic  sont  idiis  compreheusives  et  plus  coniplete'S  quo  celles  des  lois  d'AiijjIeterre, 
[iibi  Hti/ini,  p.  r/.M.) 

I'armi  les  jdecos  annext'es  au  iiK'nioire  briraiiuii|ue,  il  y  a  deux  lettres  qui  donnent  ii 
ii'tlt'chir. 

Sir  A.  ]'ap;et,  ininistre  aujjlais  en  Tortiiffal,  i^n  accusant  reception  d'uno  depecho  dii 
ministnt  d't'-tat  poitiii^ais,  ajoiite: 

"II  y  a  lu'-aiinioins  un  imint  sur  leiiuel  le  p)uverneiuent  d<'sa  Majcste  desire  beancoup 
iwoir  des  rensei<rn(tiuents,  et  aiuiiKtl  la  note  de  votre  excellence  et  les  pieces  ([u'elle 
reiiler'ue  n'iuit  ])as  trait,  c'est,  a  savoii-,  (|uelles  lois  on  (|iicls  rejfleinents,  on  (|uels  aiitres 
moyoiis,  sent  a  la  ilisi»osition  dii  <(ouveruenitMit  portuij;ais  (tour  eiiqtecher  sur  son  terri- 
toire  les  actcs  i|ui  seraieiit  eu  violation  avec  (xic)  les  lois  di<  la  neutralit»'  portuiraise, 
eoinnut  il  est  eouteuii  dans  les  <leclarations  rpie  votrtt  excellence  iii'a  traiisinises  .'" 

Kt  M.  Ca/.al  Kilieiro  nqiond  ctunine  suit: 

"1-u  n'ponie,  11  est  de  nion  devoir  d'infornier  votnt  excellence  <|iie  les  lois  et  his 
rinhMiieiUs  sur  cette  matiere  sunt  cttux  qui  etaient  conteims  dans  ma  noie  du  "J.')  de  ce 
imiis  ou  inentiounes  dan.-,  ces  documents  ;  et  les  moyeu-  "ext'cution,  dans  itt  cas  d'une 
violation  de  neutralite.  sont  ilt>s  ])ro('eilures  criniinclles.  l.'iuploi  de  hi  tbrce,  les  plaintes 
iidresscH's  aiix  j^ouvernenients  etrangers  ou  trantrcs  ii:  t.eiis  pouvant  umcner  qiudquos 
firconstances  ]»artieulieres." 

•I(t  le  ciois  bien.     l^a  (u'l  la  voloutt^  se  troiive,  les  moyens  ne  mau(|U(tnt  ]>as. 

Ltt  conseil  se  trompii  qnand  il  soutieiil  i|Ue  les  Ktats-lnis  ne  coinprenuent  i>as  ces  lois 
foiiunentees  si  claireiuent  i>ar  <Ies  ecrivains  citt's,  et  appliqiiees  i»ar  des  trihiinaiix  et 
ill's  jiniscoiisultes  du  moins  aiissi  savainnient  quo  los  lois  correspoudantes  de  I'Angle- 
U'lrc. 

Pour  1ft  Suisse,  noun  avoiis  rassenibh'  dans  nos  jiieecH  justiflcatlves  des  doeinnonts 
jir^cieux,  <iui  demoutrent  le  zele  et  la  lionne  vtdonte  que  cette  rr'-piibliqiie  apportc  au 
niiiiiition  de  sa  neiitralite  an  inilieii  des  ^ramies  j^uerres  ciiropt^ennes. 

Je  cite  anssi  I'explicr.tion  d«'s  lois  de  la  Suissit  doniiee  par  le  C<uih*i1  ft'-deinl  i\  i)ropo8 
di;  I'aftiiire  Coneini,  po.ir  demnutrer  que  lo  coiiscil  de  ht  (irande-Bretagne  se  meprend 


AS 

4 


'.yfl. 


■■'fill 
■41 


fimr 


504 


SUPPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


these  laws,  as  well  as  of  those  of  Italy  and  Brazil.  ("  Droit  public  snissi," 
vol.  i,  p.  459.) 

Now,  I  appeal  to  the  honorable  Arbitrators:  let  them  Jutlge  and  dc- 
cide  which  is  ri|ijht  with  regard  to  these  laws, — Great  Britain  rel.vinjj 
upon  an  equivocal  expression  in  a  diplomatic  dispatch,  or  the  United 
States,  who  rely  upon  the  text  of  these  laws  and  on  the  commentarios 
of  the  best  Jurists  of  France,  Italy,  Spain,  Portugal,  and  Brazil. 

I  refer  particularly  to  the  honorable  Arbitrators  on  the  questiiMi 
whether  the  institutions  of  England  are  in  reality  more  constitutional 
than  those  of  Jtfily,  Brazil,  and  Switzerland.  According  to  the  opinion 
of  the  British  Counsel,  these  countries  possess  no  neutrality  laws.  IJut 
they  observe  the  duties  of  neutrality,  and  they  observe  tliem  without 
infringing  their  Constitution.  Which  then  is  mistaken  with  regard  to 
them  ?    I^ngland  or  America  ? 


Tlip    1 
I'liiled    Stat 
amiried. 


THE  LAWS  OF  THE  UNITED  STATES. 

The  Counsel  of  (l^reat  Uritain  devotes  much  space  to  the  discussion 
of  the  laws  of  the  United  States.    I  shall,  I  think,  rofiiiirc 

" ' "' "'  "i'  less  time  to  reply  to  his  Argument. 

The  Counsel  endeavors  to  prove  that  the  law  of  tlio 
United  States,  in  so  far  as  it  relates  to  this  question,  is  limited  to  tlio 
cape  of  an  armed  vessel. 

AVith  this  object  he  quotes  expressions  from  the  third  section  of  tlio 
law,  which  enacts  certain  penalties  against  "  any  person  who  shall, 
within  the  limits  of  the  United  States,  lit  out  and  arm,  or  attempt  to  lit 
out  and  arm,  or  shall  knowingly  be  concerned  in  the  furniHlihttj,  Uti'nui 
out,  or  arming  of  any  vessel,"  with  intent  that  such  ship  or  vessel  should 
be  employed  in  the  service  of  a  belligerent  foreign  Power. 

Arguing  from  these  expressions  in  the  law  he  believes  that  to  con- 
stitute an  offense  the  vessel  must  have  been  armed,  or  an  attempt  inust 
liave  been  made  to  arm  her. 


1  * 


till  tout  an  tout  <lim8  sou  appiv^ciation  dti  ce.s  lois  aussi  biou  quo  dans  rappreciatioii  ilc 
celles  do  I'lralio  et  <lu  Urosil,  (Droit  public  sins.se,  touie  i,  p.  jr>9.) 

Maiuteuaut,  j»i  nui  rapporto  aux  houoral)li'8  arbitivs ;  qu'ils  juj^eut  efc  docideiit  <ini 
a  raison,  au  snjtit  do  cos  lois,  do  la  Grando-l{rctaji;uo,  se  foudaut  sur  uii  mot  ('iiuivoiiun 
dans  uue  dc^pt'cUo  diploniatiqiu',  on  tics  Ktats-Unis,  so  fondant  sur  lo  toxto  uionie  (Its 
lois  et  ios  coninieiitairos  des  inoillonrs  jnriscousultes  do  la  France,  do  ritalie,  dc 
I'Espaffne,  du  Portugal  et  du  IJrosil. 

Je  lu'en  vf'foro  snrtout  aux  Lonorablcs  arbitres  pour  savoir  si  Ios  iiistitnti(>iis  do 
I'Angleterro  sont  vrainient  plus  constitutioiudlos  ([uo  oellos  tie  I'ltalio,  <lii  IJrosil,  df  la 
Suisse.  D'apri's  I'opinion  du  oonsoil  do  la  (Jrando-Bretagno,  cos  pays  no  possi'deiit  pus 
des  lois  do  uoutralit/-.  Mais  ils  observeut  \v»  devoirs  de  la  neutrality,  ot  ils  l(!s  obsorvtiit 
sans  jjorter  a*:teinto  a  lour  constitution.  Qni  done  ho  tronipo  a  lour  (-jjard  f  Kst-ci' 
I'lVnjjletorro?     Est-ce  rAnierifiuo  ? 

I.KS    I.OIS    I'KS    I'.TATS-UMS. 

Le  conseil  d(!  la  (irandc^-Hrotagno  consucro  beauoonp  d'ospaeo  a  la  discussion  des 
lois  des  Etats-Uuis.  II  nio  laudra,  jo  crois,  nioins  do  temi»s  pour  ropoudre  a  son  iw^n- 
mentation. 

Le  conseil  s'edbrce  dt^  prouvor  quo  la  loi  des  Etats-Uius,  on  taut  co  qui  rcfjiinlo  la 
question,  est  linuteo  au  cas  «rnu  vaissoau  urnn-  en  guerro. 

A  cet  efllet,  il  cito  les  expressions  du  H"'"'  article  do  la  loi,  qui  frappe  de  certaiiu's 
peinos  *'  tonto  ]»ersuune  qui  dans  les  frontieres  des  Etats-Unis  dquipo  et  arnio  cm  (jiicnr, 
ou  tiiclio  d'cquiper  et  armer  en  (/iierrc,  ou  i)reud  uno  part  intolligonto  ii  Vapprovifioiiiit- 
meiit,  Vi'quipemenf  ou  Tarnn'ment  en  gnorro  d'aueun  naviro  ou  bAtinient,"  dans  le  but 
d'enqdojer  eo  naviro  ou  bittinwut  au  service  d'uno  puissaiu-o  beliigdrantu  dtranprc. 

A|>puj<?  STir  ces  expressions  do  la  l<»i,  il  croit  que  pour  constituor  lo  crime  il  laiit 
<iue  le  iiavire  ait  <^t»''  arnu-  en  guerre  oh  qu'on  ait  teiite  do  rarnuu'  en  guerre. 


MR.  cusiiing's  supplemental  argument. 


505 


I 


that  to  con- 
attemitt  Uiiist 


rupprociiition  ilc 


Vapprocifioiiui- 
lit,"  ifaiis  It'  IJi't 
|ito  etriiii)r<n'- 
lo  criint)  il  I'ti'it 


But  as  a  qiiestiou  of  jurisprudence  this  interpretation  of  the  law  is 
entirely  erroneous.  It  is  established  in  the  United  States  that  it  is  not 
tlie  nature  of  the  preparations  whicli  constitutes  the  otfense,  but  the 
intention  which  dictates  the  acts.  The  doctrine  is  thus  stated  by 
Dana : 

As  to  the  prepiiriiijj  of  vessels  witliiii  our  Juriisdictioii  for  subsequent  hostile  opera- 
tions, the  tost  we  have  applied  li.is  not  been  the  extent  and  character  of  the  prepara- 
tions, but  the  inttMit  with  which  the  particular  acts  are  done.  If  any  person  does  any 
act,  or  attempts  to  do  any  act,  toward  such  preparation,  with  the  intent  that  the  ves- 
sil  shall  bo  employed  in  hostile  operations,  he  is  guilty,  without  reference  to  the  coni- 
pk'tion  of  the  jireparations  or  the  extent  to  which  they  luiiy  have  kohG)  and  althun^h 
iiJK  attempt  may  have  resulted  in  no  definite  projjress  toward  the  completion  of  the 
liieparations,  the  procuring  of  materials  to  be  used  knowinj^ly  and  witli  intent,  &c., 
is  an  otfense.  Accordinj^ly  it  is  not  necessary  to  show  tlitit  the  vessel  was  armed,  or 
was  in  any  way,  or  at  any  time,  before  or  after  the  act  charged,  in  a  condition  to  com- 
mit acts  of  hostility. 

No  cases  have  arisen  as  to  the  combination  of  materials  which,  separated,  cannot  do 
acts  of  hostility,  but,  united,  constitute  a  hostile  instrumentality  ;  for  the  intent  cov- 
ers all  cases  and  furnishes  the  test.  It  must  be  immaterial  where  the  combination  is 
to  take  ])lace,  whether  here  or  elsewh«^re,  if  the  acts  don«?  in  our  territory — whether 
acts  of  building,  fitting,  rrrning,  or  of  jirocuring  materials  for  these  acts — be  done  as 
part  of  a  plan  by  whicii  fv  vessel  is  to  lie  sent  out  with  intent  that  she  shall  be  em- 
ployed to  cruise.     (Arguin«.at  of  the  I'nited  States,  pp.  3<!;{,  I5G4.) 

These  extracts  from  Dana  are  authoritative  on  the  question.  The 
true  interpretation  of  the  law  has  been  laid  down  in  a  decision  of  the 
Supreme  Court  of  the  United  States.  The  Court  determined  "  that  it  is 
not  necessjiry  that  the  vessel  should  be  armed  or  in  a  condition  to  com- 
mit hostilities  on  leaving  the  United  States."  (United  States  vs. 
Quincy,  Peters's  Reports,  vol.  vi,  p.  445 ;  vide  Opinions,  vol.  iii,  pp.  738, 
741.) 

Such  is  the  law  as  understoo«l  and  i)racticed  in  America.  Two  of  the 
Counsel  of  the  United  States,  Mr.  Evarts  and  myself,  have  avl.ninistered 


Mais,  en  matierc  de  jurisprudence,  cette  interpri-tation  de  la  loi  est  parfaitoment 
cirouc^e.  II  est  etabli  aux  fitats-liiis  (|iie  co  n'est  pas  lo  caiacltre  des  preparatifs  (|ui 
cniistitue  le  crinu>,  mais  rintention  (jni  preside  aux  actes.  I. a  tloctriue  est  txi)Oseepar 
Ihuia,  eonune  suit : 

"Quant  ii  la  prei»aration  de  navires  dans  notrejm  '  lietion  pour  des  actes  d'hostilite, 
ultericurs,  le  criterium  que  nous  invoi|uons  n'l'st  p.  ■  teudiie  et  le  caractere  des  pr<^- 
paiatifs,  mais  rintention  ([ui  preside  aux  actes  particn!  'IS.  Si  urn-  |>trsonne  accom- 
jilit  ou  tente  d'accomplir  nn  acte  tendant  a  ces  preparalils  d.ins  I'inti  ntion  (|ue  le  navire 
soit  emidoye  a  des  actes  d'hostilite,  cefto  personno  est  coupabl.  uis  quon  ait  •  ;;ard 
a  Tachevement  des  pn^iaratifs  ou  an  degre  auquel  ils  peuveiii  avoir  etc  pouss.  ■«,  et 
iiuoique  sa  tentative  n'ait  en  rien  fait  avancer  I'achevement  de  ces  pi<  paratifs.  !■  itur- 
iiir  des  materiaux  dout  il  doit  etre  fait  usage,  en  connaissance  do  cause  et  avec  int<-n- 
tioii,  constitue  un  delit.  Cost  pouniuoi  il  n'est  jtas  micessairo  de  demontrer  que  li 
iiavire  etait  arm<^,  ou  "^tait,  ,ius((u'a  un  certain  jtoint,  ou  a  n'im|)orte  qiu'lli  « i>o(|ue 
avantou  apres  I'acte  itu-riniine,  en  etat  de  conimettre  des  actes  d'lutstilite. 

"On  n'a  point  souleve  de  litiges  relativement  a  la  reunion  des  mati'-riaii  (iii,  pris 
i'^nliinent,  ne  peuvent  servir  a  des  actes  d'hiistiliti',  mais  <|ui,  rcMinis,  constilnfut  des 
instrunients  d'hostilite  ;  car  rintention  couvre  tons  les  caa  et  fournit  le  criterinin  de  la 
oui|)ubilit^'.  Pen  ini|)orte  on  la  reunion  doit  avoir  lien,  dans  tel  endroit  ou  dans  t<-l 
autre,  si  les  actes  commis  sur  notre  territoire, — <iu'il  s'agisse  de  construction,  di  iiiii|te- 
nii'iit,  d'armeuient  ou  de  f<nirniture  do  nniteriaux  jMuir  ces  actes, — fmit  jiaiti  ,  an 
plan  par  suite  dutpiel  nn  navire  dnit  etre  expc^dii-  dans  le  but  d'etre  employe  i;n  ci  usicre."' 
i  I'laidoyer  des  fltats-Unis,  pp.  3-JD,  :<5(l. ) 

Ces  extraits  de  Dana  font  antorit<^  dans  la  matien  .  La  vi^rltable  interpretation  de 
la  loi  a  (^td  (^tablie  par  une  dc^cision  de  la  Cour  i-upreme  des  f!tats-Unis.  La  Cour  a 
'li'tcrmint^  "qu'il  n'est  pas  ut^cessaire  (|ue  le  vaisseau  soit  arnie  ou  dans  une  condition 
'l"i  hn  perniette  de  conimettre  des  liostilitesaii  moment  de  son  depart  des  fitats-l'iiis." 
il'nited  States  vs.  Quincy,  Peters's  Reports,  vol.  vi,  p.  44r»;  ridv  Opinions,  vol.  iii.  pp. 
'3t<,741.) 

Telle  est  la  loi  ciuiune  on  renteud  et  conime  on  la  jtratiqiie  en  Anierique.  I>eux  des 
conscils  des  J^tats-l'nis,  M.  Kvarts  et  moi-meme,  avoiis  admiiiistn''  le  Ih'-partemeiit  de 


$ 


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506 


SUPrLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


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tho  JJt'pjiitinent  of  Justice,  and  we  have  so  personal  aknowledfjeof  this 
law  that  we  also  can  speak  authoritatively  on  the  subject.  1  aftirm  that 
the  interinetationof  this  law  propounded  by  the  British  Counsel  is  ab.so 
lutely  <!ontrary  to  the  interpretation  recognized  in  the  United  States. 

I  beg  to  call  attention  to  the  expressio  ns  of  the  temporary  Act  of  iSoS, 
reported  by  myself  to  the  Congrt^ss  of  the  United  States.  TiiatAct 
allows  the  seizure  "of  any  vessel  or  rt7t/c/e,"  armed  or  unarmed,  when 
there  are  any  circumstances  which  give  i)robable  cause  to  believe  that 
such  ''  vessel  or  veliicle"  is  intended  for  military  operations  again.sc  a 
foreign  State.     (United  States  Statutes,  vol.  v,  p.  213.) 

This  Act  had  been  drawn  up  according  to  the  received  interpretation 
of  the  permanent  Act. 

It  follows  that  the  whole  structure  of  criticism  which  is  built  up  by 
the  Counsel  on  the  subject  of  the  preventive  powers  of  the  President  of 
the  United  States  fajls  to  the  ground,  lie  supposes  that  that  i)ower  is 
limited  to  the  case  of  an  armed  vessel,  because  he  supposes  that  the 
penal  clauses  have  onlj-  that  extent.  lie  is  mistaken  on  both  points. 
The  preventive  i)0wers  of  the  President  apply  to  all  cases  within  the 
Act,  to  "  all  the  prohibitions  and  penalties  of  the  Act."  Now  the  Act 
does  not  require  that  the  vessel  should  be  armed ;  it  is  sufBcient  that 
its  owner  should  have  an  intention  of  employing  it  in  acts  of  hostility 
against  a  Power  friendly  to  the  United  States. 

The  case  of  Gelston  vs.  Iloyt,  cited  by  the  JJritish  Counsel,  relates 
only  to  the  manner  of  exercising  the  preventive  powers  of  tne  ^'iw,  and 
in  no  Avay  affects  the  powers  themselves. 

In  the  documents  annexed  to  the  Counter  Case  of  the  United  States 
will  be  found  numerous  examples  of  the  exercise  of  this  preventive 
power  by  the  President.  The  fact  of  being  armed  or  not  is  only  a  cir- 
cumstance which  bears  with  more  or  less  weight  on  the  real  question,— 
that  of  the  intentions  of  the  owner  of  the  vessel. 

The  British  Counsel  enumerates  the  cases  in  which  adventurers  have 
at  different  dates  evaded  the  American  law. 

AVe  have  protested  in  our  Argument,  aiul  we  (;ontinue  to  protest, 

la  Justice,  ot  nous  avoiis  do  cettc  loi  nno  connaissaneo  si  persoiinellc  que  nous  anssi 
]»ouv<)n8  en  paiicr  d'autorito.  .Faflirnie  (luc,  I'interprctatiou  de  cette  loi  c^iniso  \mv  lo 
conscil  est  absolunuMit  contrairo  a  riutorpretatiou  lecouuuo  aux  fitats-Uuis. 

.rappdlo  ]'atic;ii,iou  snr  los  exiucs.sions  do  la  loi  teniporairo  do  18!?8,  rappoitc'o  par 
nioi-uit'nio  an  Conjjit'S  dos  r.tats-lJnis.  Cetto  loi  permot  la  saisio  "  de  tout  vaisseuii  on 
vehiciih',"  arnip  on  nou-arino,  quaud  11  y  a  d(!S  cireoiustanct^s  quelconqiuss  qui  piMim-t- 
tent  de  ci'oiiT  (jue  CO  "  vaisseau  oil  vf'liicMilo"  est  dostiuo  a  dos  operations  niilitairis 
contie  un  etat  otrans<^ro.     (United  States  Statutes,  vol.  v,  p.  213.) 

Cette  loi  avait  t^te  rodijjee  selou  rinteri>ietati()u  revue  do  la  loi  porinauente. 

II  s'ensuit  <jue  tout  I'ochataudago  do  eriticiue  (pio  lo  eonstsil  coustruit  au  sujet  di^s 
pouv()irs  i»reventits  du  President  des  F.liits-i'nis  s'ecroulo.  II  suppose  <iuo  co  jtouviMr 
est  liniito  au  eas  d'un  vaisseiiu  arin<'  in  o;uorre,  i^arcecpiMl  suppose  (|uc  les  clausM 
]»enales  n'out  quo  cetto  <^toudu(^  I!  sc  1 1  nmposurcliaque  ])()int.  Lo  pouvoir  prevontif 
du  President  s'applique  a  tons  les  cas  do  la  loi,  a  "  toutes  les  prohibitions  et  pdnaiitM 
do  la  loi."  Or,  la  loi  n'exi<;o  jtas  (pio  lo  vaisseau  soit  arnie  en  <ruorro  ;  11  suHlt  ([ue  son 
l)ropri<^taire  ait  I'intentiou  do  reniployer  dans  des  actes  d'hostilitc  contro  uu  6tat  ami 
des  fitats-Unis. 

Lo  eas  de  (iolston  I's.  Iloyt,  cite  ])ar  lo  conscil,  ne  touclio  (|ue  la  nianit^re  d'exerciT  les 
pouvoirs  preventifs  do  la  loi,  ot  il  n'atleett!  on  rion  les  pouvoirs  eux-nieinos. 

Dans  les  pieces  justiflcatives  ainioxocs  au  contro-me moire  des  fitats-Unis  so  trotivi'iit 
do  nouibronx  oxernples  do  I'oxorcico  do  va'  pouvoir  prdvoutif  par  lo  Pri^sidout.  Lo  I'ait 
d'etre  arindou  non  nVst  (|u'uno  eirconstanco  qui  peso  avoc  plus  on  nn)in8  de  poids  sui 
la  vraie  quostiou,  la  question  dos  intentions  ilu  proinif'taire  du  vaisseau. 

Le  consoil  <>iuimero  los  cas,  de  dates  diverses,  oil  d  s  avonturiers  se  sunt  soustraits  a 
la  loi  .aniericaiuc. 

Nous  avous  protostc  dans  notrc  plaidoyer,  ct  nous  pcrsistons  i\   protester,  contro 


'^*in 


MR.    n  ,SHI.\(J  S    SrPPLEMKXTAL   ARGL'MKNT. 


507 


3(1^0  of  til  is 

aflinn  that 
iisel  is  ab.so- 
(l  States. 
Act  ofl  s;5s, 

.  That  Act 
rmcd,  ^vh('n 
)eUeve  that 
s  against  u 

tcrprotation 

built  u])  by 
ri'esi<b'iit  of 
hat  ])o\vei'  is 
ses  that  the 
both  points. 
s  within  the 
S'ow  the  Act 
ifficiont  that 
i  of  hostility 

iini»c'.,  relates 
nie  ''vw,  and 

Initea  States 

is  preveutiye 

is  onlj'  a  cir- 

'al  question,— 

mturers  have 


•a<;aiMst  the  applicability  of  such  argunionts.  EMf;ianrt  is  before  the 
Trilninal,  elsarf;':'!  with  havlnj^  been  wanting;  in  the  due  diligence  re- 
quired by  the  Conventional  Kules  of  the  Treaty  of  Washington. 
Whether  America  has  failed  or  not  in  her  neutral  (luties  according  to 
the  law  of  nations,  is  not  the  question  submitted  to  the  Tribunal. 
America  will  answer  for  her  acts  at  the  proper  time  and  i)lace  to  those 
whom  they  may  have  injured. 

The  Counsel  ha.i  quoted  extracts  from  the  correspondence  of  ofticers 
of  the  United  States  having  reference  to  legal  questions,  which  arise 
from  time  to  time  in  the  application  of  the  law.  These  <piestions  are, 
doubtless,  similar  to  questions  which  arise  in  England.  Unfortunately, 
the  American  law,  though  anterior  to  the  English  one,  originates  in  a 
school  of  legislation  common  to  both  countries,  whi(!h  gives  much  work 
both  to  tiie  lawyei's  and  to  the  Courts. 

We  liave  discussed  these  <|Utstions  in  our  Argument.  Uut  we  cannot 
discuss  in  detail  all  these  facts  laboriously  amassed  by  the  JJritish  Coun- 
sel without  longer  preparati<m,  which  we  do  not  wish  to  ask  of  the  Tri- 
bunal. 

The  capital  (piestion  is  that  of  the  powers  of  the  President.  The 
matter  is  elucidated  bv-  IJana.     lie  says  : 

As  to  iieiiiiltics  and  roniodics,  itartics  {inilty  are  liable  to  line  and  iniiirisonnicnt  ;  and 
tilt!  vt's.sid,  liiT  ai>i)arel  and  furniture,  and  all  materials  procured  for  the  piiriiose  of 
iMiuippin'i,  are  t\)rftnt.  In  rases  of  Muspicion  revenue  ollicers  may  detain  vessels,  and 
parties  may  bo  retiuired  to  <;ive  security  against  the  hostile  eiiii»loyinent ;  and  the 
President  is  allowed  to  use  the  Army  and  Navy  or  militia,  as  well  as  civil  force,  to 
seize  vessels,  or  to  compel  oHendiii};  vessels,  not  siibjt^ct  to  seizure,  to  depart  frcuii  our 
ports.  What  vessels  shall  bo  rerjuired  to  dejiart  is  left  to  the  judj^ment  of  the  Execu- 
tive.    (Ar<;ument  of  the  l  nited  States,  p.  1(58.) 

A  single  example  is  sutlicient  to  give  an  idea  of  the  admitted  extent 
of  the  i)owers  of  the  President. 

Spiiii  was  having  built,  in  the  shipyards  at  Xew  York,  thirty  gun- 
boats, intended  to  operate  against  the  insurgents  of  the  island  of  Cuba. 


lie  to  protest, 


<iue  nous  anssi 
lloi  i^misc  pur  !•' 
Is-Uuis. 

W,  rappovtc'c  piu' 
Itout  vaisseau  tui 

uos  qui  periiift- 
litioiis  niilitaivis 

iianente. 
[nit  iiu  sujet  <l'« 
h  quo  CO  ponveir 
]  quo  les  claust's 
louvoir  proveiitit 
Ions  «t  pi^nalitis 
|il  HuHltqueson 
itre  un  6tat  ami 

|i^,ro  d'exercer  les 

lenios. 

Tunis  se  trouveiit 
ksident.  Le  *"" 
liuH  do  poids  si" 

Isout  soiistraits  :i 

[protester,  centro 


I'opimrt unite  do  tels  ar<;uments.  L'Anj^leterre  est  devant  le  tribunal,  aecnsee  d'avoir 
mau«|ue  aux  dues  dilijfences  <les  retries  conventionnelles  dii  traitt'"  deWasbiiif^ton.  Si 
lAiiierique  a  failli  on  iion  a  ses  «levt)irs  de  neutrahtd  d'apres  le  droit  des  S'-"*')  '''  n'est 
pas  la  question  soumise  au  tribunal.  L'Ainerique  ri5pond  en  temps  et  lieu  de  ses 
aiites  a  ceux  a  qui  ils  out  ])u  niiire. 

Le  conseil  a  eit«S  des  cxtraits  de  la  corrcspondance  des  olliciers  des  Etats-l'nis, 
ayant  rapport  a>ix  questions  lej^ales,  qui  surj^issent  de  temps  en  temps  dans  I'appliea- 
tiou  de  la  loi.  Ct;»  questions  sont,  sans  d(uite,  analognes  aux  questions  qui  se  jtre- 
M'liteut  em  Angleterre.  Malheureuseiuent  la  loi  anu^ricaine,  <iuoi(iue  anterieuro  a  la 
loi  anglaise,  sorte  d'une  ecole  de  legislation  cominuiu"  aux  deux  pays,  <:e  ([iii  donne 
lii-aucoup  a  fain;  aux.jurisconsultes  et  aux  tribunaux. 

Xous  avons  <liscut«''  ces  questions  dans  notre  plaidoyer.  Mais  nous  iie  jtoiivoiis  diw- 
niter  on  detail  tons  ces  faits,  laborieusement  amasses  jiar  le  conseil,  sans  iine  plus 
longue  prejiaration  :  co  (jue  nous  no  vonlons  pas  demander  au  tribunal. 

La  (piestion  capitale  est  celle  des  pouvoirs  dii  1 'resident.  La  laatiire  est  elucideo 
par  Dana.     II  dit : 

"Quant aux peineset  aux  reparations  a  infliger,  les  coupables  sont  passibles  d'amendo 
ct  d'emprisonncment,  title  navire,  son  t'ljuipement  et  ses  lueiibles,  ainsi  tpio  tons  les 
mati^riaux  fournis  pour  son  t^qiiipement,  stmt  ct)nfist|Ui^s.  Kn  castle  soup(,t)u,  les  em- 
l»loyt^s  do8  douanes  peuvont  tUHenir  les  navires,  et  rt)u  i)eut  exiger  ipie  les  parties 
iiitt^resst'cs  ftmrnisstuit  caution  pt)ur  rt'^pt)ndre  t|u'elles  ne  reni|doieroiit  iitiint  a  des  actes 
'I'liostilitt; ;  et  lo  I'rt'sidont  a  la  facultt>  d'emplt>yer  rarmt^e  et  la  marine,  ou  la  milice, 
ainsi  quo  les  forces  civile.s,  ])t)ur  saisir  les  navirt»s,  ou  pttur  contraindro  les  navires 
coupables  qui  ne  8t>iit  pas  sujtsts  a  la  saisie  a  sttrtir  de  nos  ports.  II  est  laiss'-  a  la  dis- 
crt^tion  de  J'ext^cntif  de  .jngt>r  ipiels  sont  li;s  navires  dont  on  iloit  exiger  le  dt^part." 
il'laidoyer  amiuicain,  p.  ISoU.) 

I'll  seul  cxemple  suttit  pour  donncr  une  itltn;  de  riHendno  rectuinue  des  pouvoirs  du 
IVsident. 

L'Espagne  faisait  ctmstruire  daiw  les  chantiers  de  New  York  trente  ennonnit>rcs 
tlestindes  a  optMer  ct»ntre  les  insurgt^s       i le  do  Cuba.    C'etaieiit  des  vaisseaux  iniproprea 


^^ 


I 


508 


.SUPPLEMENTARY    ARGUMENTS   AND    STATEMENTS. 


They  were  vessels  unfitted  for  long  voyages.  They  were  not  armod 
and  had  on  board  neither  cannon,  nor  gnn-carriages,  nor  any  otiior 
engine  of  warfare,  ^^'ar  existed  dejure,  if  not  de  facto,  between  Siiaiu 
and  Peru.  The  Minister  of  Pern,  in  the  United  States,  lodged  a  eoni- 
plaint  on  the  snbject  of  these  gnu-boats.  Ue  did  not  pretend  that  they 
were  intended  to  operate  against  Peru,  since  they  could  not  round  Cape 
Horn.  Jjut  he  asserted  that  if  used  to  guard  the  coasts  of  Cuba,  tlicy 
would  free  from  that  service  other  vessels,  which  uuglit  thus  attack 
Peru. 

The  President  admitted  this  argument,  and  ordered  the  detention  of 
the  whole  thirty  vessels,  until  Spain  and  Peru  had  settled  their  ditfcr- 
ences  through  the  mediation  of  the  United  States. 

JURISDICTION  OF  THE  TRIBUNAL. 

A  questioii  ;>v  diligence  presents  itself  with  regard  to  an  erroneous 
decree  of  a  Coii  t  of  Admiralty  of  Nassau. 

I  lay  down  as  principle  that  the  Government  which  institutes  legal 
proceedings,  and  submits,  without  appeal,  to  an  erroneous  decree,  has 
not  the  right  of  pleading  tliis  decree  as  an  excuse  for  subse(pient  wrongs 
belonging  to  the  same  class  of  facts.  It  is,  in  my  opinion,  a  double 
failure  in  the  due  diligence  prescribed  by  the  Kules  of  the  Treaty.  I 
abstain  from  discussing  this  (piestion. 

But  I  affirm  that  the  erroneous  decree  is  in  no  way  binding.  This, 
indeed,  is  evident.  Furthermore,  and  above  all,  I  affirm  that  the  decree 
is  in  no  way  binding  on  an  international  Tribunal. 

The  principle  is  laid  down  and  sufficiently  discussed  in  Kutherlbrth's 
Institutes,  an  English  work  of  merit  and  authority. 

Wheaton  and  other  writers  adopt  also  the  views  of  llutherforth. 

The  (piestion  was  raised  by  the  English  and  American  Commissioners 
nominated  to  carry  out  the  stipulations  of  Jay's  Treaty.    The  following 

a  (1<!  longups  courses.  Us  n'otaient  i)a8  arnicas,  et  iravaiciit  a  bonl  iii  canons,  iii  atlrtts' 
III  aucun  autre  enjoin  de  combat.  La  fjucrre  existait  dc  droit,  siuon  de  fait,  eutre 
rEsi»aj^Me  ft  le  Pt-rou.  Le  niiuistro  ilu  Poroii  aux  Etats-Uuis  porta  plainto  au  sujct  de 
ces  canounicres.  11  no  protondit  pas  ([uVlles  fnssent  dcstiuoes a  op^-rer  contro  Ic  l'»'rou, 
atteudu  quVlles  no  pouvaient  pas  passtT  lo  caj*  Horn.  Mais  11  protendit  qn'appli(iut't's 
SI  l!»  yardo  dos  cotos  do  Cuba,  ellos  liboreraieut  tie  cc  servico  d'autres  vaissoaux,  (jiii 
punrraioiit  ainsi  atta«|uor  le  l¥rou. 

le  Pn'sident  80  reudit  a  ws  raisons  ot  ordonua  la  dt-tontitni  on  bloc  do  cos  tronte 
vaisst>aux,  jusqu'a  co  qno  I'Kspafjno  ot  lo  Pi'moii  oussont  r<''glo  Iotus  dilloronds,  fjraci'  a 
la  lui'diatitiU  dos  fltats-Uiiis. 


I    » 


( ; 


.iniiniCTION    DU   THMUXAI.. 

I'no  f|uestif>n  dos  dlligonces  so  prosonto  an  sujot  d'un  docret  orroud  d'uuo  cinir 
d'aniirautode  Nassau. 

.le  pose  on  priucipo  <|U0  le  gouvonioniout  qui  intouto  dos  ponrsiiitos  Judiciaires,  ot 
qui  so  souniet,  sans  appolor,  a  un  df-crot  orroiu'-,  n'a  pas  lo  droit  d'allojiuor  co  ib'cict 
pour  excuser  dos  torts  ult<^rieurs ajtpartouaut  a  la  nienie olasso  de  faits.  (J'ost,  Jo  iii»is. 
tiiillir  donbleuient  aux  duos  diligences  proscritos  par  los  roj^los  du  traitii.  Jo  m'abstii'iis 
do  discuter  cotte  (puistiOn. 

Mais  j'attirnie  que  le  di'^cret  errouo  no  lie  on  uucuuo  nianiore.  Cola,  du  rosto.  ost 
("vident.  De  plus,  j'anirmo  surtout  que  lo  docrot  no  lie  d'ancnno  nninioro  un  trilmiiiil 
iutcrnational. 

Le  principe  so  tronve  <^nouco  ot  snftisannnont  discnto  dans  les  Instituts  do  Kiitlicr- 
forth,  ouvrage  anglais  do  ni<^rite  ot  d'autorit*'-. 

Wheaton,  ot  d'autres  ocrivaius  d'autorito,  onx  aussi,  adoptent  les  vues  do  Kiithcr- 
fortb. 

La  rpiostiou  a  ^U'  soulovoo  par  los  coniiuissairos  anglais  et  auK^ricains,  iioiinius 
pour  statuer  snr  dos  stipulations  dn  trait*'  dit  de  Jay.     La  circonstance   suivanto  i'>t 


MR.    CUSHINGS    SUPPLEMENTAL   ARGUMENT. 


509 


in 


circiiinsi  nee  is  reported  in  the  memoirs  of  Mr.  Trumbull,  one  of  the 
Secretaries  of  that  Commission.  It  appears  that,  being  in  doubt,  the 
Commissioners  consulted  the  Harl  of  Loughborough,  then  Lord  Chancel- 
lor. The  latter  decided  that  the  Commissioners,  in  their  capjicity  of  an 
international  tribunal,  possessed  complete  jurisdiction  to  revise  the  de 
crees  of  any  munici))al  tribunal,  and  to  decree  compensation  to  the 
Government  injured  in  its  interests  or  in  those  of  its  subjects.  The 
Commissioners  acted  accordingly. 

I  conceive  that  such  is  the  jurisdiction  recognized  in  the  case  of 
private  claims  by  numerous  international  Comiuissions  wiiich  have 
since  set  in  England  and  America. 


|,| 


CONCLUSION. 


lu  erroneous 


Rutherlbvtirs 


I  have  now  treated  some  of  the  questions  argued  l)y  the  Counsel  of 
Great  Britain,  solely  to  relieve  my  conscience.  1  do  not  think  they  are 
of  a  nature  o  exercise  ]>reponderating  inttuence  on  the  conclusions 
of  the  Arbitrators.  Tlie  Kules  of  the  Treaty  are  decisive  in  all  the 
questions  raised  by  the  United  Sti^tes.  Jf  those  Kules  are  the  true 
expression  of  the  law  of  nations,  as  1  .mu  convinced  they  are,  well  and 
good ;  if  they  exceed  tlie  law  of  nations,  they  necessarily  constitute 
tbe  conventional  law  of  the  Tribunal. 

The  interpretation  of  the  municipal  la'vof  England  is  of  little  moment. 
Of  still  less  moment  is  the  interpretation  of  the  law  of  the  United  States. 
The  laws  of  other  European  States  are  of  no  iuiportance  whatever.  The 
conduct  of  the  United  States  toward  Spain  or  Mexico,  or  even  toward 
Great  Britain,  is  not  here  in  question.  There  is  but  one  single  question, 
and  it  is  this :  Hns  England  failed  or  not  in  the  due  diligence  re<iuired 
by  the  Treaty  of  Washington  ? 

The  United  States  are  here  maintaining  [uinciples  which  are,  in  cheir 
opinion,  of  great  importance  to  all  maritime  nations,  and  especially  to 


i!i|>l>oitoe  (laiis  les  iiioinoiics  do  M.  Trniiibull,  I'mi  tics  (sccrotaires  do  ri;tti\  coiiiiiiiHsitni. 
11  parait  quo,  dans  lo  doute,  Ics  coniinissaires  out  consnlto  It;  Coiiite  de  Loiij^hbonmj^h, 
Uruiid  chaiifflicr  d'alors.  Cohii-ei  dorida  inio  lew  coiiimi.ssaiics,  en  leiir  (pialite  de 
tribunal  international,  possedaient  une  juiidiction  complete  pour  reviser  les  deerets 
(I'lin  tribunal  municipal  <iuelcon<iue  et  de  fuire  droit  an  ijouvernement  l<^se  dans  ses 
int«^r^t8  ou  dans  ceux  de  ses  siijets.     Les  conimiasaires  ont  agi  en  consequence. 

.IVstiuiefpie  telleestla  juridiction  recoiuine,  «lans  le  cas  de  r<^clamations  partieidieres, 
par  <1«  nombreuses  commissions  intermitionales  ■  ni  ont  s\6g6,  depnis  lors  en  Anj^le- 
tene  et  en  Anu^ri(|ue. 


d 


vou6  d'unc  tour 


ituts  de  Riitlit'i- 


^ricaiuH,  noiiniK'^ 
Ince   BuivantoH 


COKCI.USIOX. 

Je  viens  de  traitor  «iuelques-unes  d»!s  questions  po8(^es  par  le  conseil  de  la  Grande- 
Bretague  iiniqueuient  pour  Taj-cjuit  de  ma  conscionee.  Je  no  crois  pas  iju'ellos  soient 
de  nature  u  exercer  uno  inlluenco  pri^pondorante  sur  les  conclusions  des  arbitres.  Les 
regies  du  traitd  sont  df^oisives  dana  toutes  les  questions  8(uilev«^e»  par  les  l^tats-Unis. 
Si  ces  regies  sont  I'expression  vraio  du  droit  des  gens,  comnie  j'en  suis  convaincu,  e'est 
hien  ;  si  elles  depasseut  le  droit  des  gens,  elles  constituent  forci^uient  le  droit  couveii- 
tionnel  du  tribunal. 

Pen  importe  I'interpri^tation  de  la  loi  municipalc  d'Anpleterre.  I/interpr(<tatiou 
do  la  loi  des  Etats-Unis  importe  moins  encore.  Les  lois  des  autrea  dtats  de  I'Europe 
u'iniportent  en  rien.  La  con«luite  des  I^tats-Unis  envers  I'Espagne  ou  le  Mexir[ue,  ou 
niAine  envers  la  Grandc-Bretagiie,  n'est  pas  ici  en  cause.  II  n'y  a  qu'une  seule  <iuestion, 
et  la  voici :  L'Angleterre  a-t-elle  failli,  oui  ou  uou,  aux  dues  diligences  rcquisea  par  lo 
trait*^  do  Washington  ? 

Les  I^tats-Unis  soutiennent  ici  des  principea  qui  sont,  li  leur  avis,  d'une  haute  im- 


^ 

!■ 

■  't  ■ 

<  h> 

■.i.'e' 

,510 


SIPPLEMENTAKY    ARGUMENTS    AND    STATEMENTS. 


I- 


(Jreat  Britain,  still  more  so  than  totlu"!  United  States.  In  conse(|U('«ce, 
we  await,  with  respect  and  submission,  but  also  without  uneasiness, 
the.jiul<;nient  of  this  au};ust  Tribunal. 


C.   CUSIIING. 


NOTE. 

In  case  the  Arbitrators  should  think  it  worth  while  to  study  the  sub- 
ject attentively,  we  refer  them  to  the  following;  documents,  which  clearly 
l)rove  the  spontaneous  activity  of  the  Executive  at  all  times  to  i)reveiit 
equipments  and  expeditions  in  contravention  of  the  law  of  nations,  at- 
temi»ted  in  the  ports  of  the  United  States: 

I. — Cvunter  Caw  of  the  Vnilid  Sinks  und  Ji>piu<Vix.    {Freiuli  tniiitihttion.) 

Mr.  McCnllocli  to  ^h\  Monroe l'> 

Do.  (1« ;i(i 

Mr.  Monroe  to  Mr.  Gli-nn ',i\ 

Mr.  ( ilenn  to  Mr.  Monrot' :v,{ 

Mr.  Hnsh  to  Mr.  McCnlloch 41 

Mr.  McCnllocli  to  Cuptain  licanl 4;{ 

Do.  «lo.  4.'> 

Mr.  lujjersoll  to  Mr.  Adams 4?* 

Mr.  Kobbins  to  Mr.  Adams .^):i 

Mr.  Monroe  to  Mr.  Fish ;V 

Mr.  Wirt  to  the  J'resident ;> 

Mr.  Swift  to  Mr.  McCnlloch (Vi 

Mr.  McCnlloch  to  Captain  Heard (i^ 

Do.  do (lit 

Mr.  McCnlloch  to  Eientenant  Marshall T'i 

Mr.McCuUoch  to  Captain  Daniels ri2 


portance  ponr  tontes  Ics  nations  maritimcs.  et  snrtont  ponr  la  (Jrande-Bretagne  jdiis 
encore  (|ne  ponr  les  I^tats-Unis.  En  conse(|nence,  nons  att<.'ndon8  avec  respect  et  avec 
sonuussion,  uiais  aussi  sans  in<inietn<ie,  le  jufjenieiit  de  cet  aiij^nste  tribnnal. 

C.  Ctsiiixc. 
0  aoiit.     (\"n\c  I'rofocole  Xrill.) 


^K  '^ 


NOTE. 

Dans  le  cas  ofi  les  arbitres  peuseraient  qn'il  vant  la  peine  d'etndier  attentivenieut 
le  snjet,  nons  les  renvoycnis  aux  docnnieuts  snivants,qnid^montrent  jnsqn'a  I'dvidcuce 
I'activite  spontan^^e  qne  I'execntif  a  mise  de  tont  teuips  a  pr^venir  des  e<inipenicnts 
«'t  des  exp<^ditions  eontraires  an  droit  des  gens,  essayes  dans  les  ports  des  fitats-Unis: 

I. — Conitc-nu'moire  des  J^tats-Uiiis  et pilces  justificaCives. 

I'ages. 

Mr.  McCnlloch  a  Mr.  >Ionroe 1.') 

Mr.  McCnlloch  a  Mr.  Monroe W 

Mr.  Monroe  a  Mr.  Glenn 31 

Mr.  (ilenn  a  Mr.  Monroe '.\o 

Mr.  Kush  ii  Mr.  McCnlloch 41 

Mr.  McCnlloch  au  Capitaine  Beard 43 

Mr.  McCnlloch  au  Capitaine  Beard i-i 

Mr.  lugersoU  a  Mr.  Adams 48 

Mr.  Bobbins , W 

Mr.  Munroe  i\  Mr.  Fish ;> 

Mr.  Wirt  au  President .V 

Mr.  Swift  a  Mr.  McCulloch <>■.' 

Mr.  McCnlloch  au  Capitaine  Beard (>:( 

Mr.  McCnlloch  an  Capitaine  Beard 6i' 

Mr.  McCnlloch  an  Lieutenant  Marshall *'<J 

Mr.  McCnlloch  au  Capitaine  I*aniels ^i 


Wis 


rs. 


MK.    CUSHINO  .S    SUrPLKMENTAL   AK(iUMKNT. 


511 


;oiise(|u('nco, 
,  uueasini'ss, 

CUSIIING. 


luly  the  sub- 
ftbicU  ck'iuly 
L's  to  prevent 
f  natioiiSj  at- 


nhitioti.) 


I'l 


ir> 

:u 
•x\ 

41 
4'.! 
4.'. 

4e 
:>:! 
r.w 
fif 
c.-i 
ra 

C.'.t 
7-2 

ri2 


le-Bretiigne  pins 
c  respect  et  avet; 
buiiiil. 
C.  Crsiiix<i. 


^r  atteiitivenieut 
[isqira  l'6vidcuce 
Vies  e<iiiipeineiits 
lies  fitats-Uiiis ; 


15 

:«i 
:n 
:w 

41 
43 

4r. 

4f 

:.3 

(W 
(Hi 


PlllJCS. 

Mr.  McCnlloch  to  Mr.  Low ry K'> 

Mr.  MeCiilloth  to  Mr.  .liieksoii HtJ 

Mr.  MeCiilloch  to  Captain  Webster H7 

Do.  do.  HfJ 

])i).  do.  h;» 

Mr.  Adams  to  Mr.  (ilciin IM 

Mr.  MeCiilloch  to  ('ai»taiii  Webster 'M; 

Uo.  do.  UKt 

Do.  do.  ^ 10') 

Mr.  Steriiiig  to  Mr.  Williams KM! 

Mr.  Graham  to  Commodore  MeCauley , 1(I7 

Mr.  Fillmore  to  (Jeiieral  Hitelicock los 

Mr.  Conrad  to  General  Hitelicock 101» 

Mr.  Uavis  to  General  Wool lir> 

Mr.  Cnslung  to  Mr.  In<j;o I  IT) 

Mr.  Cusliinff  to  Mr.  MeKeon US 

Mr.  Cnsliing  to  the  I'resident llil 

Mr.  Cnshing  to  Mr.  MeKeon 'M8 

Expedition  of  Walker ;u;0-3«)8 

Mr.  Clayton  to  Mr.  Hall '.{74 

Correspondence  of  Messrs.  Clayton  and  J  lall ;i78-;?82 

Mr.  Hall  to  Mr.CIavton :{H7 

Mr.  Clayton  to  Mr.  Hall :?l>l 

Mr.  I'reston  to  Captain  Tattnall :m 

Mr.  Preston  to  Commo<lore  Parker Ii9T 

Report  of  Commander  Newton 408-700 

Mr.  Meredith  to  the  Collectors  of  Customs 418 

Various  proclamations 11<)-419-425J 

(.'orresjionilenee  relative  to  the  nmnitors 4*25-440 

Correspondence  relative  to  the  Florida 44l-4r)'«i 

Mr.  McCulloeli  a  Mr.  Lowry 85 

Mr.  McCnlloch  -X  Mr.  Jackson Hii 

Mr.  McCulloch  an  Capitaine  Webster 87 

-Mr.  McCulloch  an  Capitaine  Webster 88 

Mr.  McCulloch  an  Capitaine  Webster 89 

.Mr.  Adams  a  Mr.  Glenn 94 

.Mr.  McCulloch  nn  Capitaine  Webster 9() 

Mr.  McCulloch  au  Capitaine  W^ebster 100 

Mr.  McCulloch  au  Capitaine  Webster 105 

Mr.  Sterling  a  Mr.  Williams 10(> 

Mr.  (irabam  au  Commodore  MeCauley 107 

Mr.  Fillmore  au  General  Hitchcock 108 

Mr.  Conrad  au  Gen«^ral  Hichcock 109 

Mr.  Davis  au  Gt'iidral  Wool 115 

Mr.  Cusbing  it  Mr,  Inge 115 

Mr.  Cushiufr  a  Mr.  MeKeon 118 

Mr.  Cushing  au  President 110 

Mr.  Cushing  a  Mr.  MeKeon :{48 

Kxpeditiou  de  Walker 3C0-:{68 

Mr.  Cl.ayton  j\  Mr.  Hall 374 

Correspondance  de  MM.  Clayton  et  Hall 378-382 

•Mr.  Hall  a  Mr.  Clayton 387 

Mr.  Clayton  t\  Mr.  Hall 391 

Mr.  Preston  au  Capitaine  Tattnall 394 

Mr.  Preston  au  Connnodore  I'arker 397 

Kajiport  du  Commandant  Newton 700 

Mr.  Meredith  aux  receveurs  des  douanes 418 ! 

Proclamations  di verses 704-711 

Corre8|toudance  relative  aux  vionitors 425-440 

(.'tirrespondance  relative  a  la  Florida 441-452 


(H., 


Amt 


!    H  ■  I  i 


III 


512  HITPI.EMEXTAKV    AUGUMEXTH    AND    STATEMENTS. 

II. — CorrvHiHmihiice  niat'nr  to  Ihc  Affuii-t  of  Cuba  hi  the  l\iiijVmh  Siii>i>lvnn!iit  lo  Ihv  (.'outilrr 

Cane  of  the  United  Slatvx. 

TIic  SpiniiMli  };iin-1tniits t.Vj-  Is;, 

The  cam?  of  tlin  Oricntiilis :{-t; 

The  CiiHC  of  tlin  K.  K.  Ciiyler I'i-lC 

Mr.  H«!iTon  to  Mr.  Hrowiiiii^ 17 

Mr.  E varts  t<»  Mr.  (Joiirtiicy 'j'i 

Mr.  Fish  to  McHMrs.  I'iorrcpont  .iiul  IJiirlow  ...♦ ' ;h 

Do.  do.  Ill:', 

Corrcspondeiice  of  MessrM.  I'otcMtail,  Davis,  Milledgo,  and  Iltmr IDT-Ili; 

II.— Comxjiuiiilaiae  nlaliir  our  affmres  de  Cuba  (Jntii  k  HiippU'inent  en  anglain  nu  rinitre- 

iiiemoire  dm  /■.'latn-L'tn-i. 

Los  canoiiiiii'rcs  ospiijjnolcs , 'l.')4-i"<rt 

Ij'att'aire  do  rOriciitalL' ;{-() 

li'aJlaire  <Iii  U.  U.  Cuyhr : l,>-lt; 

Mr.  Herron  a  Mr.  Urowiiinjj; 17 

Mr.  Evarts  a  Mr.  Courtney •,'•,» 

Mr.  Fisli  i\  M.  Pierrcpoiit  ft  Mr.  Hiirlow- ' It- 
Mr.  Fish  a  M.  I'icrreiMnit  ft  Mr.  ISarlow iD.t 

Correspoiidaiitf  df  ilM.  Totfstad,  Davis,  Miliedijo  ot  Hoar 107-11(1 


..I. 


to  the  (.'iniiitri 


^F" 


VI.-RKPLY  OF  MR.  VVAITE,  ALKJUST  S,  TO  THE  ARGUMENT  OF 
SIR  ROl'NDELI.  PALMER,  UPON  THE  SPECIAL  QUESTION  AS  TO 
SUPPLIES  OF  COAL  IN  BRITISH  PORTS  TO  CONFEDERATE 
SHIPS.  (SEE  PROTOCOL  XIX.) 


ughi'm  (III  cinitir- 


The  •'  special  question  as  to  supitlies  of  eoal  in  British  ports  to  Confeder- 
itte  sltipn,''^  iieceHsarily  iiivolvos  jui  ♦'xaiiiinatioii  of  the  tacts  and  circum- 
stances  uniler  which  i)erniis8ioii  to  take  such  supplies  was  {^ranted. 

It  is  not  contended  by  the  Counsel  of  the  United  States,  that  all  sup- 
plies of  coal  in  neutral  ports  to  the  ships  of  war  of  belligerents,  are 
necessarily  vi(>lations  of  nt'utrality,  and,  therefore,  unlawful.  It  will  be 
siillicient  for  the  i)uri)oses  of  this  controversy,  if  it  shall  be  found  that 
(Ireat  Britain  permitted  or  sujf'ered  the  insurfjonts  "  to  make  use  of  its 
l)ort8  or  waters  as  the  base  of  naval  operations  aftsiinst  the  United 
States,"  and  that  the  supplies  of  coal  were  obtained  at  such  ])ort8  to 
facilitate  bidliyerent  oi)erations. 

1.  All  naval  warfare  must,  of  necessity,  have  ujion  laud  a  ''  base  of 
operations.'"    To  dejuive  a  belligerent  of  that  is  equivalent 

to  depriving  him  of  the  i)ower  to  carry  on  such  a  warfare  .,.„„ ';'i!!.V„'!,,',"i"rl, 
successfully  for  any  great  length  of  time.     Without  it  he 
cannot  maintain  his  ships  upon  the  Ocean. 

2.  A  "  base  of  operations''  for  naval  warfare  is  not  alone,  as  seems  to 
iic  contended  by  the  distinguished  Counsel  of  Great  Britain, 

sec.  3,  chap,  iii,  of  his  Argument,)  "  a  place  from  which 
operations  ot  naval  warfare  are  to  be  carried  into  etfect.''  It  is  not,  of 
necessity,  the  place  where  the  belligerent  watches  for,  and  from  which 
he  moves  against,  the  enemy  ;  but  it  is  any  place  at  which  the  necessary 
preparations  for  the  warfare  are  made ;  any  place  from  which  ships, 
arms,  ammunition,  stores,  equipment,  or  men  are  furnishe*!,  and  to 
which  the  ships  of  the  navy  look  for  warlike  supplies  and  for  the  means 
of  efltectiug  the  necessary  repairs.  It  is,  in  short,  what  its  name  im- 
plies— the  support,  the  foundation,  which  upholds  and  sustains  theoper- 
iitions  of  a  naval  war. 

This  was  the  doctrine  recogni/ed  by  Earl  Itussell  on  the  2.">th  of 
March,  1802,  three  days  after  the  Florida  g:ot  out  from  the  port  of  Liv- 
trpool,  and  while  the  correspondence  in  reference  to  her  construction 
iiud  outfit  was  fresh  in  his  mind.  In  writing  to  Mr.  Ailams,  at  that 
time,  in  reference  to  complaints  m.ade  of  the  treatment  of  the  United 
States  vessel  of  war  Flambeau  at  Nassau,  in  the  month  of  December 
previous,  he  used  this  language : 

On  tl)«  Dthor  hiuul,  tlie  Flaiiibcaii  was  avowfilly  an  armed  vessel  in  the  service  of 
the  Federal  Geveinuieiit.  She  had  entered  the  port  of  Nassau,  and  had  remained  tliere 
tor  some  days,  without  any  apparent  necessity  for  doin;f  so,  and  the  authorities  had 
not  Itecn  informed  of  the  object  of  her  visit.  To  supply  her  with  coal  mijjht,  therefore, 
'"to  facilitate  her  bellijjerent  operations,  and  this  would  constitute  an  infraction  of  the 
iioiitrality  prescribed  by  the  Queen's  prochunation  of  the  13th  of  May  last.  (Am.  App., 
vol.  i,  J).  :J48.) 

•').  This  ''base  of  operations"  must  be  within  the  territory  of  the  bel- 

liserent  or  of  his  ally.    A  neutral  which  supplies  it  violates    „ ., , „ , 

liis  neutrality,  and  may  be  treated  as  an  ally.    A  bellig- 

33  c    ' 


iU;tl  t'Tr.'.Mfy. 


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SITI'LKMKNTAUY    AKCiUMKNTS    ANI»    STATKMENTS. 


crent  using  without  pennissiou  tli'i  territory  of  a  ncutnil  lor  such  ;, 
purpose,  coinmitH  an  ott'ense  against  the  hiws  of  neutrality,  and 
subjects  himself  to  the  forcibhi  expulsion  of  his  ships  of  war,  iuid  lo 
all  other  means  of  punishment  and  redress  wliich  may  Im!  recpusite  Uw 
the  vindication  of  the  ott'ended  neutral  sovereign. 

4.  After  the  end  of  the  summer  of  1801,  the  insurgents  never  had  any 

available  base  of  operations  for  naval  warfare  within  tlic 
„.. ..Id.  im,.  .Mih...  limits  ot  their  own  territory.   J*rom  that  time  lorward  until 

the  end  of  the  contest,  the  United  {States  maintained  a 
blocktade  of  all  the  insurgent  jiorts,  which  was  recognized  by  all  iicntral 
nations  as  lawful,  and  was  .so  far  effective  as  to  prevent  any  vessel  of 
war  (unless  the  Tallahassee  and  Chickamauga,  with  perhaps  some  other 
small  ves.sels,  .should  be  excepted)  from  using  these  ports  as  a  base  for 
hostile  operations  upon  the  sea.  No  supplies  for  such  operations  were 
ever  obtained  there,  nor  were  any  reiniirs  eftected. 

It  is  true,  the  Na.shville  escaped  through  the  l)h)ckade  from  tlu'  jiort 
of  Charleston,  but  when  she  escai)ed  she  Mas  in  no  condition  for  war, 
and  within  three  days  was  at  Hermuda  in  want  of  coal.  After  there 
taking  on  board  a  full  supply,  she  was  enabled  to  make  her  voyage  of 
eighteen  days  to  Southampton.  The  Florida  ran  the  blockade  iiiwitnjs 
and  reached  Mobile,  where  .she  was  detained,  more  than  four  months,  by 
the  naval  forces  of  the  United  States.  At  the  end  of  that  time  .she 
ell'ected  an  esca[ie,  but  with  onlj*  a  short  supi)Iy  of  coal,  for  within  ten 
days  after  her  escape  she  appeared  at  Nassau  "in  distress  for  ^\ant  of 
coal."  After  having  been  fairly  set  upon  her  crui.se  from  Nassau,  .she 
not  unfrequently  remained  at  .sea  two  months  and  more  without  renew 
iug  her  supply. 

5.  This  was  at  all  times  known  to  the  British  (iovernment.  The  block- 
..reniHnt  1,-11, v  {hIc  wbs  thc  subjcct  of  frcqucut  correspoudeiice  between  JMr. 

"'"  Adams  and  Earl  Kus.sell,  and  was  acknowledged  to  be  autli- 

ciently  eflective  to  bind  neutrals. 

0.  i»y  depriving  the  insurgents  of  the  use  of  their  base  of  naval 
operations  at  home,  the  United  States  obtained  a  (Iccided 
and  important  advantage  in  the  progress  of  the  wai.  Tl  was 
a  war,  on  the  part  of  the  United  States,  for  the  suppression 
of  a  wide-.spread  rebellion  against  the  authority  of  the  Government.  At 
the  outset,  the  power  of  the  insurgents  appeared  so  great,  and  their 
organization  was  so  complete,  that,  in  the  opinion  of  the  Britisli  Govern- 
ment,  it  was  proper  they  should  stand  before  the  world  and  be  recoj; 
nized  as  beligerents.  The  territorj',  which  they  claimed  as  their  own 
and  sought  to  control,  embraced  a  large  extent  of  sea-coast,  well  sup- 
plied with  ports  and  harbors,  available  for  all  the  purposes  of  commerce 
and  naval  warfare.  In  fact,  it  embraced  two  out  of  the  live  navy-yards 
of  the  United  States,  and  a  port  at  which  extensive  preparations  had 
been  made  for  the  establishment  of  a  sixth. 

The  people  of  the  States  not  in  rebellion,  but  remaining  loyal  to  the 
Government,  were  a  commercial  people,  and  largely  engaged  in  naviga- 
tion. At  the  commencement  of  hostilities,  the  insurgents  proclaimed 
their  intention  of  making  war  upon  this  commerce.  To  prevent  this. 
and  to  keep  such  ports  as  were  in  the  possession  of  the  insurgents  from 
being  used  as  ba.ses  of  the  operations  for  such  a  war,  the  United  States 
at  once  determined  to  establish  and  effect  their  blockade.  With  the 
superior  power  and  resources  under  the  control  of  the  Government,  it 
was  able  to  accomplish  this  work ;  and  before  the  insurgents  could 
supply  them.selves  with  ships  of  war,  their  ports  were  closed  against  all 
effective  optjrations  from  their  own  territory  as  a  base. 


'I'll.*  iiil\i.iit;iK."«  .i( 
til"...'  iH.ln  11.  til.- 
riiitfil  Stuti- 


IWP'l 


MM.    WAITES    SUrrLKMKNTAI.    AkCU'MKNT. 


515 


howiu.  "i-was 


HiHKi'iitN      tit     nlilitirt 
tH'Mlnil  lernlory. 


This  advantaj;*;  was  one  the  United  States  had  tlie  ri}?ht  to  retain  if 
witliiii  their  power  so  to  do.  No  neutral  nation  eoul<l  interfere  to  pre- 
vent it. 

7.  The  loss  whieh  the  insnrjfcnts  had  thus  sustained  at  home,  they 
endeavored  to  repair  by  tlie  use  of  the  ports  and  territorial  ^tt  .n,  .t  .i,^  ,„• 
waters  of  neutral  nations;  and,  in  jioint  of  fa(!t,  they  did  carry 
on  substantially  their  entire  naval  warfare  ajofainst  the  eoni- 
ineree  of  the  United  States  from  a  base  of  operations  outsideof  their  own 
territory.  This  fact  is  not  (lenied.  It  is  entirely  sci)arate  and  distinct 
from  that  of  "permission"  or  "  si  iterance,"  whieh  only  becomes  im- 
portant when  it  is  soujjfht  to  (jharp^e  the  neutral,  whose  territoiy  is  used, 
with  the  consequences  of  the  use. 

8.  Toleration  by  a  neutral  of  th<!i  use  of  its  ports  and  waters  by  the 
ships  of  war  of  a  belligerent  to  facilitate  the  oiierations  of 

ins  naval  warfare,  is  e(piival«M(t  to  a  jiermission  to  use  such  •  i"»'. t   n.  p.f 

ports  and  waters  as  a  base  of  naval  operations. 

This  i)rinciple  wasrectoKni/^ed  by  the  Emperor  of  Ibazil  in  his  iustruc- 
tiona  to  the  presidents  of  his  provinces  on  the  2.'{d  of  June,  1.S(k{,  (Hrit. 
App.,  vol.  i,  p.  LM)L*.)  it  was  adopted  by  Earl  I'ussell  on  the  llith  of  June, 
1802,  after  tlie  orijjinal  escape  of  the  Florida  from  Liverpool,  and  before 
the  oommeneemeut  of  the  correspondence  in  n'fereiice  to  the  construc- 
tion and  outfit  of  the  Alabama,  when,  in  a  letter  addressed  to  Mr.  Adams, 
he  said : 

Attempts  on  tlio  part  ol  the  subjects  of  a  iKMitiiil  •iost'iiiiiKMit  to  tiiko  part  in  a  war, 
or  to  inukoiiso  ol'tho  lUMitrul  territory  as  an  arstMial  or  liarrack  for  the  preparation  and 
iiiceptioii  of  direct  and  ininiediuto  liostilities  against  a  state  with  whidi  their  j^overn- 
ment  is  at  peace,  as  by  enlisrinj;  8(»hliers  or  fittiii};  out  ships  of  war,  and  so  ccnivertinjr, 
iiB  it  were,  n(;iitral  territory  into  a  hostih?  depot  or  post,  in  order  to  curry  on  hostilities 
tiierefroni,  have  an  obvious  tendency  to  involve  in  the  war  the  neutral  jjovornnient 
which  tolerates  such  procepdin<js.  Such  attempts,  if  uiichcelied,  might  imply,  at  least, 
an  indirect  ]inrticipatiflii  in  hostile  acts,  and  they  are,  therefore,  consistently  treated 
by  the  government  of  the  neutral  state  as  otfenses  against  its  public  policy  and  safety, 
which  may  thereby  be  implicated.    (Am.  App.,  vol.  i,  p.  (56').) 

If  such  proceedings  by  subjects,  when  "tolerated"  or  "unchecked," 
may  imply  an  indirect  participation  by  the  neutral  in  the  hostile  acts  of 
a  belligerent,  how  much  stronger  is  the  implication  when  the  proceed- 
ings are  those  of  the  belUffet'ent  himself. 

y.  It  will  not  be  denied  that  "  toleration,"  "  iiermission,'  or  "  sufter- 
ance,"  by  a  neutral,  in  this  connection,  implies  a  knowledge     r»iir,t  o„  in„.ii. - 
of  the  act  or  thing  tolerated,  permitted,  or  suft'ered ;  or,  that  ^"""'' "'"• 
which  is  equivalent,  a  culpable  neglect  in  employing  the  me.ins  of  ob- 
taining such  knowledge. 

10.  As  early  as  the  escape  of  the  Florida  from  Liverpool,  on  the  22d 
of  March,  18G2,  the  British  Government  had  knowledge,  or, 

to  say  the  least,  had  "reasonable  grounds  to  believe,"  that  nasmwi, "','n.un,i  1!. 
an eflbrt  was  being  made  by  the  insurgents  to  supply,  in  part,  ^'.r."nVi'i;'ten,il'i  Z 
the  loss  of  their  own  ports,  for  all  the  purposes  of  war  upon  ""'"'"'"'• 
the  Ocean,  by  the  use  of  those  of  Great  Britain.  From  that  time  for- 
ward it  knew  that  the  insurgents  relied  entirely  upon  the  ports  and 
waters  of  neutral  nations  for  the  success  of  their  nav.al  warfare.  This 
fact  was  so  notorious,  and  so  well  understood  in  Great  Britain,  that  it 
was  made  the  subject  of  special  comment  by  Earl  Eussell  in  the  House 
of  Commons  during  the  progress  of  the  war.    (Am.  App.,  vol.  v,  p.  535.) 

11.  All  the  really  effective  vessels  of  war  ever  used  by  the  insurgents 
were  obtained  from  Great  Britain.    This  is  an  undisputed 
fact.    Two,  certainly,  the  Florida  and  the  Alabama,  were  -.u''7,f'"wnr'"«m,; 
constructed  and  specially  adapted  for  warlike  use  in  Great  '^^ '•"^'"  "'^'"""• 


W 


516 


sriM'LKMKNTARV    ARGUMKNT>s    AND    STATKMENTS. 


i:; 


. ! : :  ■ 


iljK 


■Wi 


Wlit-iioiil 
thf.V       WITI* 
vv  ithnnl     :i     I 


JiritJiin,  under  coiitractH  for  tlistt  imrposc  made  directly  with  the  iiisiir 
gent  aiithoritieis.  All  this  was  known  by  the  British  CJovernnient,  l(>ii;> 
before  either  of  these  vessels,  after  completing  their  armament  and 
receiving  their  coiunnssions,  ai>peared  at  Jiny  of  the  ports  of  the  Kiii<v. 
dom,  asking  permission  to  coal  or  to  repair ;  iu  fact,  it  was  known  helon' 
they  ha<l  ai)peare(l  in  the  i)orts  of  any  nation. 

For  the  purposes  of  this  argument,  it  matters  not  whether  (ircat 
liritain  did  or  tlid  not  use  due  tliligence  to  prevent  the  construction  oi 
escape  of  these  vessels.  The  fact  that  the  insurgents,  in  procuring  tlu';ii, 
committed  an  oflense  against  the  neutrality  laws  of  the  realm,  ami  siih 
jected  themselves  to  punishment  therefor,  remains  undis]>ute(l.  Tiic 
indivi<lual  agents,  who,  within  British  jurisdiction,  committed  tlii.> 
crime  against  IJiitisli  municipal  law,  made  themselves  subject  to  tlif 
]>enalties  of  thai  law.  The  authorities  of  the  insurgents,  who  i)r<)iiiot('(l 
the  crime,  subjected  themsehes  to  such  n)«'asures  as  (irc-it  IJiitaiu  uw^ht 
see  lit  to  ad()i)t  in  onler  to  resent  the  wrongs  mUicteti  on  her,  an(l  to 
cause  i.;;r  sovereignty  to  be  respectted. 

IL'.  When  these  vessels  were  upon  the  sea,  armed  aru.1  titted  lor  Wiii. 
the  in.*:  ugeuts  had  advanced  one  step  towards  inovidiii;; 
themselves  with  the  means  of  prosecuting  a  war  against 
the  commerce  of  the  United  States;  but  they  nee<le(l  oin' 
thing  more  to  inaUe  any  war  they  might  wage  successful,  and  that  was 
ii  base  of  operations.  Without  this,  the  United  Slates  would  still,  to  a 
limited  extent,  ha\  e  remaiiu'd  in  the  i>i»ssession  of  the  advantages  tlan 
JKul  gained  by  i\  successful  blockade.  The  gr'at  dillicnlty  to  be  over 
come  v,as  the  sup])ly  of  coals.  To  no  nation  could  this  fact  be  nioiv 
apparent  than  to  (Ireat  Britain,  the  tlagof  whose  nmgnitlcent  imvv  \vii> 
at  that  time  almost  const'nily  alloat  in  all  tl»''  princii>al  seas  of  tlif 
world. 

l.».  (Jreat  Britain  had  the  undoubted  right,  upon  the  discovery  oi 
these  offenses  couiuiitted  by  the  insurgents  against  her 
municipal  laws,  and  of  their  violations  in  her  territory  ol 
the  laws  of  nations,  to  exclude  by  force,  if  necessary,  the 
vessels,  in  this  uianuc  placed  upon  the  seas,  from  all  the  hospitalities 
usually  accorded  to  naval  belligerents.  ii\  the  ports  and  waters  of  tlic 
kingdom. 

This  was  the  jironipt  decree  of  Brazil,  when  her  liosi)itality  was 
abused  by  one  of  these  vessels.  (Brit.  App.,  vol.  i,  ]>.  lit).'}.)  Tiie  Coiiiisci 
of  (ireat  liritain  <h)es  not  di^ny  tlie  power  of  the  British  (lovernnu'iit  ti> 
jnak<'  the  same  orders. 

It.  In  this  way  (Jreat  Britain  might,  to  a  great  extent,  have  prevent«'tl 
the  consequences  of  tlie  original  ciime  connnitted  witliin 
her  own  jurisdiction.  It  was  her  duty  to  use  ^\ne  diligeiiti' 
in  her  own  ])orts  and  waters,  jind,  as  to  all  persons  within 
her  jurisdiction,  to  prevent  tln>  departure  of  su;ha  vessel  Irom  hertcrri 
tory.  If,  notwithstanding  her  diligence,  such  si  vessel  was  constnictcil 
within,  and  de})arted  from,  her  (U'i'^diction,  then  good  faith  toward  i 
uation  with  which  sIm'  was  at  p«  -e  requiresi  that  she  should,  as  far  .i> 
possible,  curtail  the  injnrioes  c(  nse<jui  aces  of  the  unlawful  act  wliicli 
she  had  been  unable  to  pr«>vent.  Slu^  owed  no  comity  to  a  nation  Miat 
had  abused  lu'r  hospitably.  She  was  under  no  obligations  to  open  lni 
porta  to  a  belligerent  that  had  violated  her  neutrality.  No  belligcn'Mt 
hail  tlu'  right  to  (Umami  the  use  of  h»  r  jiorts  for  the  accommodati'»n  •'' 
his  shi[)s  of  war.  It  was  a  privilege  she  could  grant  or  not  as  sIh 
pleased,  and  if  in  this  respect  she  treated  both  belligerents  alike,  ncitlici 
liad  tlu'  right  to  convplain.     .\n   trder  which  exchuled  all  guilty  ol  ''-n 


riwv  totftlit  li:n 
tiiM-u  I'Vrludfd  liui 
Itriltdl  pnifx. 


In-.-     u'j.ild    haw 
|tn'Vtiit".l    tin*   iiiiu 

ri»'«  Whlih  tidjnwed. 


' '»"     fs 


TS. 


Mil.    WAITK!-'    SUI'l'hKMENTAI.    AKiil'MKNT. 


fyll 


ith  the  iiisiu- 
rnment,  loiif; 
maineut  ami 
of  the  Kiiifj 
known  bcton" 

liotlu>r  (iiTiil 
Histnictioii  01 
ocuiiuf?  tlu'iii, 
'aim,  and  siih 
iHjmttHl.  The 
iniinittiMl  this 
snbject  to  tilt' 
who  ])roMiot(Hl 
liritaiu  uii<;iit 
1)11  hi'i",  and  to 

titti'd  lor  Will . 
irds  inovidiii;: 
a  war  a,i;;aiiisi 
ley  noi'ded  on*' 
I,  and  that  \va> 
vonld  still,  to  a 
dvantajios  tlu'.\ 
ilty  to  be  over 
s  tact  be  111  or.' 
ticout  naw  \\a> 
ipal  seas  of  tli'' 

lu;  discovery  oi 
its  aii^ainst  liei 
her  territory  ol 
f  necessary,  tlif 
he  hospitalities 
,1  waters  of  the 

jhospitalit.v  w;is 
)  Tiie  Couusf' 
(Jovernnient  ti 


have  ])rev('ntt'tl 

fnnn>itted  witliii' 

|se  dne  dili^'oin''' 

persons  witliin 

K  I  froinherterri 

was  eoustriu'toi! 

faith  toward.! 

dionhl,  as  fiU  .i^ 

law  fnl  act  wIik'Ii 

to  a  nation  «li:>' 

lioJis  to  open  Imi 

No  belli^'ori"!! 

•coninJodrtUoiiol 

jt  or  not  as  slu' 

Inrs  alike,  neitlio! 

lall  'iniltv  of  f'"' 


K,iiae  offense  would  have  operated  alike  on  all  who  were  ^-uilty,  but 
would  not  lisive  included  the  innocent. 

!."•.  Tlie  United  States  had  ttie  li^ht,  as  they  did,  todeniaiulofGreat 
HritJiiii,  that  she  should  uae  all  means  within  her  power  to 
avoid  the  consequence  of  her  failuve  to  prevent  the  use  of  n..M'"",tV,r''if  r'n'" 
her  territory  for  these  uniii>vful  purposes.  ^Vs  has  been  I!,',,! ,''i,.,-.' '.i  i,T'i^"'. 
setni,  the  insurgents  eonimenced  in  Great  Britain  their  vio- 
iiitions  of  these  particular  laws  of  neutrality,  ihey  were  tlagrant  act. .. 
They  were  Jiccoiiipl!"^hed  in  spite  of  the  United  States,  They  were  high 
oifenses  a^fuinst  tlie  authority  and  dignity  of  the  government  of  Great 
Britain,  and,  as  Karl  Russell  afterward  said,  ''totally  unjustiliable  and 
manifestly  offensive  to  the  liritish  C'rown."  (Am.  App.,  vol.  i,  ]>.  <J;J1.) 
To  permit  ther.i  to  pass  unrebuked  was  to  excuse  them,  and  was  to 
encourage  future  transgressions. 

As  was  subse(|nently,  on  the  27th  of  March,  18(i3,  sai<l  by  Air,  Adams, 
in  a  conversation  with  Earl  Itussell  ni)on  this  subject: 

W'liat  was  iiimh  lUM-dcd  in  America  was  not . solely  evidence  of  action  to  jiicvi-iit  tliese 
urinanients.  It  was  tlu;  moral  jxjwer  that  niij;iit  bt;  extended  by  tlie  Ministry  in  si-^ni- 
I'yinjj  its  utter  disapproval  of  all  the  niijchinations  of  the  conspirators  aitaiast  tiie 
pi,, .lie  peace.  Hitherto  the  impression  wius  (juite  ;ieneral,  as  well  in  Anierici  as  i>i  this 
lountry,  that  the  Ministry  ludd  no  common  suiitinient,  a'.id  were  <inite  disposed  t  »  be 
tolerant  of  all  the  labors  of  the,se  peojde,  if  not  i.i<lilfer<Mit  to  them.  Here  they  were 
iibsolutely  ,snstainiii";  the  rebels  in  the  prosecution  of  the  war  by  the  advance  of  money, 
iif  ships,  and  of  all  ti  •  necess.iries  with  wliicii  to  carry  on  as  well  by  sea  as  on  the  land ; 
;md  upon  such  notorious  otVciises  Ministers  had  never  yet  fjiveii  out  any  other  th,iii  an 
uncertain  sotuid.  77ic  cffvct  of  tliix  iiinut  Uc  obrioun.  II  ■■  •"lunujed  the  optralionx  of  Jirilixli 
'MiijatorK  of  thi'  iroiiblr  on  Ihh  xidc,  irho  luliii-al  llial  llirfi  iirrc  coiiiiirfd  iit,<uiil.!<o  hliiriiiij, 
'imhdoii  tliiir  xclicnu'x  irilli  mir  rif/or.     (Am.  Apji.,  vol.  iii,  p.  I'j.'i.) 

Nothing  can  ad<l  tii  the  force  of  these  words,  Oini.s.sioii  by  tin'  Uritish 
Government  to  act  under  such  circumstances  was  nothing  less  than 
toleration  of  the  abii,ses  comjjlaine*!  of.  It  was,  in  short,  an  implied 
permission  to  continue  the  nidawtul  practices. 

It).  Great  IJritain  not  only  neglected  during  the  wiiole  war  to  take 
my  measures  by  which  any  of  the  otVciiding  vcs.sels  »d'  the 
insurgents  would  be  excluded  from  the  hospitalities  of  her 
|iorts,  and  their  agents  prevented  from  using  her  territory  for  fiicilitat- 
:!i}i  their  iielligei-ent  operations,  but  she  in  effect  refn.sed  ,so  to  do.  She 
lid  not  even  send  remonstrances  to  the  govenmieMt  of  the  insurgents. 


,1  i.,|i 


hut'lill    re 


!  B  or  to  any  of  its  agents  residing  and  cotulueting  its  alVairs  within   her 
I'wn  jurisdn-lion. 

Oil  the  !th  of  September,  l.S(L*,  Mr.  Adams,  in  a  c<immniiication  to 
Kiul  ]»ussell,  ealled  attention  to  the  fat  t  that  tln^  Agrippina,  the  bark 
«liich  ha<l  taken  a  part  of  the  armament  to  the  Alabama,  was  preparing 
to  take  out  another  cargo  of  coal  to  her,  and  asked  that  sonu'thitig 
iiii;j;Ut  be  done  which  would  prevent  the  a<,'C(»mplishment  of  this  object. 
Uiit.  Ap|).,  vol.  i,  p.  2(>1»,)  This  <'(>ininunication,  in  «lue  cour,se  of  busi- 
ii'-'ss,  was  reterred  to  the  Gommissitniers  of  Customs,  w  ho,  (mi  the  L*r)tli  of 
tilt!  same  month,  reported:  '*That  tin  re  wtnild  be  great  dilliculty  in  as- 
wrtaining  the  intention  of  anv  narties  makinii'  such  a  shim 


'.y  P 


>P 


do  not  {ippiM'lieiid  that  our  ollii^er.s  would  have  :iny  power  of  interfering 
with  it,  were  the  coals  clearetl  outward  for  ,soaie  foreign  ptnt  in  com- 
|iliiui(;e  with  the  law.  (lU'it.  Apj),,  vol.  i,  p,  2i;».)  Thus  the  nnitter 
Hn(l"d. 

If  then'  was  no  power  in  the  olllcers  of  the  customs  to  interfere  with 
the  shipment  of  the  coals,  there  certainly  was  ample  power  in  the  Gov- 
wiment  tt)  prohibit  any  otteiuling  belligenMit  vessel  from  coming  into 
the  porta  of  (Jreat  nrittdn  to  receive  them.     That,  if  it  wouM  not  have 


518 


SUPPLEMENTARY    AROlMExNTS    AND    STATEMENTS. 


m ! 


:'     t 


It '  ^ 


iirt'it    Itritniii 

ntiintecii  tlif   us 
il»    piirt»    hy  Hi 


stopped  the  oftending:  vessels  entirely,  might  to  some  extent  have  em- 
bairassed  their  operations. 

Again,  on  the  7tli  of  J)eceniber,  1803,  IVfr.  Adams  submitted  to  Kail 
Knssell  evidence  of  the  existence  of  a  regular  oflice  in  the  port  of  Liver- 
pool for  the  enlistment  and  i)ayraent  of  British  subjects,  for  the  purpose 
of  carrying  on  war  against  the  <TOvernment  and  i)eo])le  of  the  IJnitort 
States.  (IJrit.  App.,  vol.  i,  p.  428.)  Tliis  communication  was  by  Karl 
liussell  referred  to  the  Law  Otticers  of  the  Crown,  who,  on  the  iLHli  of 
the  same  month,  reported :  "  We  have  to  observe  that  the  facts  (lis 
closed  in  the  depositions  furnish  additional  grounds  to  those  already 
existing  for  strong  remonstrance  to  the  (Confederate  (lovernment  on 
account  of  the  systematic  violation  of  our  neutrality  by  their  agents  in 
this  country.'-  (Brit,  App.,  vol.  i,  p.  t40.)  There  is  no  evidence  teiidiii;; 
to  prove  that  any  such  remonstrance  was  then  sent.  In  fjict,  the  Inst 
action  of  that  kind  wlsich  api)ears  in  the  proof  was  taken  on  the  l.Uli 
day  of  February,  1805,  less  than  sixty  days  before  the  chrse  of  the  war. 

17.  The  conduct  of  Great  l>ritain  I'rom  tlie  commencement  was  such 
as  to  encourage  the  insurgents,  rather  than  di.scoiua<fc 
them,  at>  to  the  use  of  her  ports  an<l  waters  for  nece.s.sar\ 
r,'n7"'rr'''ow,l'i'nm;  rcpairs  an<l  for  obtaining  i)rovisions  and  coal. 
pro,:  ;on,n»a.„ai.  rji|,p  ^\j5iijji,na  iirst  appoarcd  in  a  British  i>ort,  at  Jamaica. 
on  the  20th  of  January,  18(5,'j,  nearly  six  months  after  her  escape  from 
Liverpool,  and  after  a  laj>se  of  mucii  more  time  than  was  suilicient  t(» 
notify  the  most  distant  colonies  of  the  olfense  which  had  been  connnittod 
by  her,  and  of  any  restrictions  which  the  (iovernnuMit  at  home  had  seen 
tit  to  ))lace  upon  her  use  of  the  hospitalities  of  ports  of  the  Kingdom. 
No  such  luitice  was  ever  given,  nor  was  any  such  restriction  ever 
ordered. 

Tlu^,  Alabama  went  to  ,Iamai(  a  lor  the  reason  tliat  in  an  engagciiit'iit 
with  the  llatteras,  a  United  States  naval  vessel,  she  had  received  siicli 
injuries  as  to  make  extensive  rejjairs  neces.sary.  This  engageinent  took 
place  only  twenty-live  miles  from  a  honu^  port,  but  insteacl  of  attemptin^j 
to  enter  it,  and  make  her  rei»airs  there,  sln'  sailed  more  than  lil'tecn 
hundred  miles  to  reach  this  port  of  Great  liritain.  In  doing  this  she 
had  sailed  far  enough,  and  spent  time  enougli,  to  have  enabkMl  her  to 
reach  any  of  the  ports  of  the  insurgents;  but  tiie  blockade  i)revente(l 
her  entering  them,  and  she  was  compelled  to  rely  upon  the  hospitalities 
of  neutral  waters.  At  Jamaica,  she  was  permitted  without  objection  to 
make  her  repairs,  and  to  take  in  such  coal  and  other  supplies  as  slie  re 
quired  for  her  cruise.  She  was  treated.  Commodore  Dunlop  said,  as  any 
United  States  nmnof-war  would  have  been  treated  by  him. 

On  the  ^oth  of  the  same  month  (January,  18t>3)  the  Florida  appeared 
at  Nassau  short  of  coal.  Although  she  was  only  ten  days  from  a  home 
port,  she  was  permitted  to  supply  herself  with  coal  and  other  necessa 
ries.  On  the  24th  of  the  next  month  she  again  appeared  at  liarbado.s. 
"bound  for  distant  waters,''  but  she  was  in  distres.s,  and  unless  j)erniit- 
ted  to  repair  the  captain  said  he  would  be  compelled  to  land  his  men 
and  stri[)  his  ship.  Notwithstanding  her  past  ottenses,  i)ermissioii  to 
repair  and  take  on  siipplies  was  granted. 

These  were  the  first  visits  of  any  of  the  offending  cruisers  to  Briti.sli 
waters.  They  were  substantially  their  first  visits  to  any  ports  ol  a 
neutral  nati(m.  The  Florida  stopped  for  a  short  time  at  Havana,  ou  hei 
way  from  Mobile  to  Nassau,  and  the  Alabama  was  for  a  few  hours  at 
Martinique ;  but  at  neither  of  these  |>laces  did  they  take  on  any  coal  or 
make  any  rt^pairs. 

Thus  the  nation,  whose  authority  and  dignity  had  been  so  grossly 


MK.    WAITKS    SUPPLEMENTAL    AR(iLMENT. 


a 


II) 


Mit  have  em 


otteiided  in  the  construction  and  outlit  of  these  vessels,  was  the  tirst  to 
grant  them  neutral  hospitalities.  From  that  time  her  ports  were  never 
dosed  to  any  ijisurfjeut  vessel  of  war;  and  permission  to  coal,  i)rovis- 
ion,  and  repair  was  never  refused. 

It  is  said  in  the  British  Counter  Case,  p.  US,  that,  during-  the  course 
of  the  war,  ten  insurjjent  cruisers  visited  Jiritish  ports.    The  total  iiuni 
ber  of  their  \isits  was  twenty- five,  eleven  of  which  were  nmde  for  the 
purpose  of  eJlectin};  repairs.    Coal  was  taken  at  sixteen  of  these  visits. 
The  total  amount  of  coal  taken  was  twenty-eijiht  hundred  tons. 

Tlie  number  of  visits  made  by  thes<»  cruisers  to  all  tiie  ])orts  of  all 
other  neutral  nations  during  the  war  did  not  exceed  twenty.  So  it  ap- 
pears that  the  hospitalities  extended  by  (heat  J>ritain  in  this  form  to 
the  insurgents  were  greater  than  those  of  all  the  world  beside;  and 
yet  more  serious  ottenses  had  been  committed  against  her  than  any  other 
neutral  nation. 

They  required  repairs  at  about  one-half  their  visits  and  coal  at  about 
two-thirds. 

The  average  supply  of  coal  to  vessels  of  the  insurgents  was  one  hun- 
dred and  seventy-live  tons. 

Because,  therefore,  the  insurgents  did  make  tiseof  the  i)orts  of  (Jreat 
Britain  :<s  a  base  for  their  naval  operations,  and  the  British  ^i,  ,,,„  ,„„,,, 
(lovernment  did  not  use  due  diligence  to  prevent,  but  on  the  l;;.i;;t/iVv 'u.Vr."' 
contrary  suH'ered  ami  permitted  it,  all  supplies  of  coal  in  '"i''"i"n"i'H> 
those  ports  to  Confederate  ships  were  in  violation  of  the  neutrality  of 
(rreat  Britain,  and  rendeied  her  respot»sible  therefor  to  the  United 
States. 

M.  R.  Waitk. 


I 


! 


ii   ■! 


ii 


■ 


H 


(iV 


^li: 


i!  : 


^.. 


VII.-ARGUMKNT  OF  SIR  KOUNDELL  PALMER  ON  THE  (^liES- 
TIOxN  OF  THE  HECRUITMENT  OF  MEN  FOR  THE  SHKNANDOAH 
AT  MELBOURNE. 


Her  IJritaiuiic  Mjijcsty's  (Jouusel,  being  porniitted  to  otter  soiiu' 
further  observations  in  explanation  of  the  facts  as  to  the  recruitiueiit 
of  men  by  tiic  Shenandoah  at  Melbonrne,  as  to  which  there  api)eare<l 
to  the  President  to  be  some  obscurity  in  tlie  evidence,  takes  the  hberty 
to  submit  the  following  statement : 

Before  the  Tribunal  can  hold  Great  Britain  responsible,  by  reason  ol 
this  recruitment  of  men,  for  the  subsequent  captures  of  the  fSlieuaii- 
doah,  it  must  be  satisfied  (I)  that  the  Government  of  Great  Britain,  l>y 
its  Representatives  in  the  Colony  of  Victoria,  "  pennittted  or  sulfered" 
the  use  of  its  ports  or  waters  by  the  Shenandoah  for  this  purpose,  if  not 
directly,  at  least  by  the  want  of  due  diligence  to  prevent  such  recruit- 
meut,  and  (2)  that  the  recruitment  so  msule  was  an  augmentation  of 
force  necessary  to  enable  the  Shenandoah  to  ettect  the  captures  for 
which  Great  Britain  is  sought  to  be  hehl  responsible,  and  without  which 
those  cai)tures  could  not  have  been  nuule,  and  was  in  this  way  a  ciir<Ht 
and  proximate  cause  of  those  captures. 

It  cannot  be  pi'eteiuled,  on  the  one  hand,  that  Great  Britain  ought  to 
be  held  responsible  for  a  recruitment  of  men  by  a  belligerent  vessel 
M'hich  the  local  (lovernment  in  no  sense  '•  permitted  or  suffered ;*' nor, 
on  the  other  hand,  that  every  act  prohibit<Hl  by  tlie  Second  Kuleof  the 
Treaty  of  Washington  can  render  the  neutral  Government  responsible 
for  all  cai)tures  after  such  act,  however  renu)te,  indirect,  partial,  or  in 
significant  may  have  been  the  rehition  of  that  act,  as  a  (;ause,  to  tliosc 
captures  as  an  effect. 

Tlie  Shenandoah  arrived  at  Melbourne  on  the  L'.">th  of  .Fanuary,  ist»r», 
and  the  next  day  she  was  visited  by  Captain  King,  Xav:il  Ag«'nt  on 
board  of  the  Bombay,  who  found  that  her  crew  (it  is  pr«'sumed  inchuliiifi 
otticers  and  petty  olUcers)  then  consisted  of  seventy  men'.  Of  these 
seventy,  about  twenty-three  appear  to  have  soon  afterward  <le 
serted,  having  i)reviously  servetl  on  board  of  some  of  the  ships  whicli 
the  Shenandoah  had  taken  on  her  cruise  between  October,  ISOt,  and 
.lanuary,  l.S<»r».  Her  force  was  thus  reduced  to  about  forty-seven  men. 
being  the  same, or  nearly  the  same,  miiiiber  with  which  her  cruise  from 
the  Desertas  originally  I'ommeiiced;  and  less  l)y  twenty-three  men  than 
her  force  was  when  she  arrive«l  at  Melbourne.-' 

Oii  the  <lay  of  his  entrance  int«)  i'ort  Philip,  Caittain  NVaddell.  when 
asking  permission  to  make  the  repairs  and  obtain  the  supply  of  coals 
necessary  to  enable  him  to  get  to  sea  as  quickly  as  jwssible,  and  also  to 
land  his  ])risoners,  gave  a  si>ontaneous  promise  to  "observe"  Her  3laj- 
esty's  '*  neutrality."' 

Care  was  taken  to  ascertain,  by  a  i>roper  survey,  what  repairs  wt'ie 
necessary;  and,  while  allowing  them  to  be  made,  the  Governor  {'M\ 
February,  1.SG5)  ordered  a  strict  supervision,  and  daily  reports,  by  tbe 


KritiHh  App.,  vol.  i,  p.  4iKI, 


-  Il»i(l.,  pp.  r^-i'-i,  .'■.57,  una  f>71. 


''LiiMitcniint  Wiulddl  to  Governor  Darliiij;,  .liiniiary  '2.'),  lHr>.'».   liritiHli  App..  vol.  i.  i> 
.".(Rl. 


HRITISH    AKCiTMENT SHKNANDOAM. 


o21 


w^m 


wiiv  11  iiir"ct 


niuai'v,  is<i'». 
;\l  A};«Mit  oil 
(hI  iiichulini; 


Customs  authorities,  directin}^  every  precaution  in  their  power  to  be 
taken  "  ajjainst  the  possibility  of  the  conunander  of  that  vessel  in  any 
degree  extending  its  annamentor  rendering  the  present  armament  more 
etteetive/'  These  orders  were  transmitted  by  the  Head  of  the  Customs 
Department  to  the  Harbor  Master,  (Febrnary  0,  18(i.j,)  with  a  direction 
that  "  the  proceedings  on  board  the  Shenandoah  must  be  carefully 
observed,  and  any  apparent  abuse  of  the  permission  granted  to  that 
vessel  with  respect  to  rei>airs  at  once  reported,"'  Tliese  orders  were 
strictly  acted  upon. 

On  the;  7th  February  leave  to  land  "  surplus  stores'"  from  the  Shenan- 
doah was  refused,  under  the  sidvice  of  the  Attorney-General ;  and,  on 
the  same  day,  Captain  Waddell  was  informed  that  "  the  use  of  appli- 
auces,  the  property  of  the  Government,  could  not  be  granted  nor  any 
iissistaiHie  rendered  by  it,  directly  or  indirectly,  toward  ettecting  the 
repairs  of  the  Shenandoah.''^ 

So  matters  stood,  the  most  scrupulous  and  anxious  <!are  being  taken 
to  pi'event  any  breach  of  neutrality,  till  the  10th  of  February,  when 
Consul  IJlanchard  forwarded  to  the  Governor  an  affidavit  of  one  John 
Williams,  a  colored  man,  who  had  Joined  the  crew  of  the  Shenandoah 
from  the  captured  ship  D.  Godfrey,  in  which  he  stated  that  on  jNIonday, 
the  6th  February,  when  he  left  the  ship,  "  there  were  fifteen  or  twenty 
men  concealed  in  different  parts  of  the  ship,  who  came  on  board  since 
the  Shenandoah  arrived  in  llobson's  Bay,  and  who  told  him  they  came 
on  board  to  join  the  ship ;  that  he  had  cooked  for  these  men  ;  and  that 
three  others,  who  had  also  joined  the  Shenandoah  in  the  port,  were  at 
the  same  time  working  on  board  in  the  uniform  of  the  crew  of  the  Shen- 
andoah." On  the  l.'Jth  another  affidavit  of  one  Madden,  who  had  also 
iK'longed  to  the  crew  of  the  1).  (Jodfrey,  was  added,  in  which  Madden 
said  that,  "when  he  left  the  vessel  on  the  7th  February,  there  were  men 
hid  in  the  forecastle  of  the  ship,  and  two  working  in  the  galley,  all  of 
whom  came  on  board  the  vessel  since  «he  arrived  in  the  port ;  and  that 
the  officers  pretended  they  did  n<»t  know  that  these  men  were  so  hid."' 

The  letter  of  the  10th  February  was  the  first  intimation  which  the 
(lovernor  ever  received  of  any  attempt  at  a  recruitment  of  nien.  On 
the  next  day,  the  11th  February,  Detective  Kennedy  was  directed  to 
make  inquiries  on  that  subject ;  and  he,  on  the  l^Hli  February,  reported 
"tliat  twenty  nien  have  been  discharged  from  the  Shenandoah  since  her 
iirrival  at  tids  port.  That  Captain  Waddell  intends  to  ship  forty  hands 
here,  who  are  to  be  i<ik<Mion  board  <luring  the  night  and  to  sign  articles 
when  they  are  outside  the  Heads;"  adding,  "  it  is  said  that  the  captain 
wishes,  if  possible,  to  ship  foreign  seamen  only,  and  all  FnglishtiuMi 
shipped  here  are  to  assume  a  foreign  name."  lie  also  nu^itioned  certain 
jtcrsons  said  to  be  engaged  in  getting  the  requisite  number  of  men  ;  and 
iio  named  one  man,  wlio  stated,  ''about  a  fortnight  ago,"  tliat  ('aptain 
Waddell  had  offered  him  £11  to  ship  as  carpenter,  and  anotlier,  as 
■cither  already  enlisted  or  about  to  be  so."  Jiut,  as  to  the  persons  so 
named,  no  evidence  was  then,  or  at  any  tinu'  afterwiird  before  the  de- 
liiuture  of  the  ship,  produced  by  any  person  in  support  of  the  informa- 
tion which  had  been  so  given  to  the  detective  officer. 

To  this  Keport  Mr.  Nicolson,  the  Superintendent  of  Detectives,  made 
the  following  important  addition  on  the  same  13th  February  : 

Mr.  Scott,  rositleiit  dork,  hus  Imhmi  iiitormed— in  fact,  ho  overliennl  a  porson  rcpre- 
wnted  u"  «n  iiHHmtaMt  |iur.scr  state — that  about  Hixty  iimii,  en^rn^fMl  here,  were  to  be 


'H'ltmh  Api? .  vol.  i,  p.  ."ilH. 
'(ritiMh  App.,  /ol.  v,  pp.  7<> 
IWid..  vol.  1.  pp.  <M)r>,  «UI8. 


Thi^  Huine  aH  to  Hupplics. 
77. 


KritiHh  App.,  vol.  i.  i>.  r)17. 


522 


SUPPLEMENTAKV    AUGIJMKNTS    AM)    8TATEMKNTS. 


it        ! 

>'■        I 

I'    I 


w 


•n 


r! 

ji 


I 


I- 


t  ■■ 


I 


sliipp«><l  «tii  IxMinl  un  old  vrssul,  iK^lidvcil  to  l»e  tin;  Kli  Wliitin-j',  to};ctln',r  witli  ii  i|iiiiii- 
tity  of  iimniuiiitioii,  &c.,  ubont  two  or  thrt'o  (lays  befori;  tlie  Klit'iiaiulouli  kjijIh.  'I'ho  foi . 
incr  vessel  is  to  lie  clciiivtl  out  for  PortliiiHl  or  Waruuiiibool,  Itiit  is  to  wait  outside  tlic 
Fleatis  for  tliu  Slienantlotili,  to  whom  her  car^^o  aii<l  pass«;ii<;urH  are  to  ho  traiisiiortetl.' 

Tbis  stafeinent  of  Mr.  Nieolson,  while  suggesting  that  the  miiiihci-  oj 
intended  recruits  might  be  even  hiigerthan  tiiat  of  which  Detective  Ken- 
nedy  had  received  information,  ]>ointed  to  certain  detinite  means,  viz, 
transshipment  from  another  vessel,  (the  Eli  Whitney  being  nanu'd.)  as 
those  by  which  tlie  recruitment  was  intended  to  be  made. 

The  (jiovernor  in  Council  on  the  same  day  took  these  Iteports,  and  iilso 
Consul  lilanchard's  letter  of  the  10th  February,  and  Williams's  allidavit, 
into  consideration.  The  Law-OOicers  of  the  (Colonial  Government  had 
alrea<ly  directed  informations  to  issue,  and  warrants  to  be  obtained, 
against  such  persons  as  Williams  could  identifv  as  being  on  board  the 
Shenandoah  for  the  i)urpose  »)f  eidistment;  and  it  was  resolved  that  the 
movements  of  the  Kli  Whitney  (then  lying  in  the  bay)  should  be  care- 
fully watched  by  the  Customs  De[)artment.  This  watch  was  successfid 
in  preventing  the  accomplishment  of  the  suspected  design  by  means  of 
that  vessel,  if  it  had,  in  fact,  been  entertained.^ 

A  circumstance  which  occurred  on  the  following  day,  the  14th  of  Feb- 
ruary, was  calculated  to  confirm  tln^  impression  that,  if  any  such  ])ar- 
pose  really  existed,  its  actiomplishment  was  likely  to  l)e  attempted  by 
means  of  some  auxiliary  vessel  lying  outside  the  line  of  IJritish  Juris- 
<liction.  Captain  Waddell  on  that  day  impured  by  letter  of  the  Attor- 
ney-deneral  in  what  precise  way  the  line  of  IJritish  Jurisdiction  at  J'ort 
IMiilip  was  considered  to  be  measured  by  the  authorities.  An  answer 
to  this  inquiry,  without  explanation  of  the  puri>ose  with  which  it  has 
l»een  made,  was  most  i)roperly  refused.' 

A  warrant  having  been  issued  for  the  apprehension  of  one  of  the  men, 
saidtobeon  board  the  Shenandoah  ami  passing  by  the  name  of  Charley, 
Mr.  Lyttelton,  Superintendent  of  Folice,  went  on  the  l.'Uh  February  on 
board  the  ship  to  execute  it,  but  was  met  by  the  objection  of  the  i)rivi 
leged  character  of  the  vessel  as  a  public  ship  of  war.  Captain  Waddell 
was  then  absent;  but  on  the  next  day,  the  Itth,  when  Mr.  Lyttelton 
returned,  he  repeated  this  objection,  adding: 

I  i>h'(l;fe  you  my  word  of  honor,  ms  an  offiiTr  and  a  ycntltman,  tliiit  I  buv<;  not  any  one 
on  board,  nor  hare  1  rngaijed  any  onv,  nor  iriH  I  irliilv  J  am  lint."  ^ 

The  (lovernor  then  considered  it  right,  since  Ca})tain  Waddell  refused 
to  permit  the  execution  of  the  warrant  on  board  the  ship,  to  suspend 
the  permission  which  had  been  given  for  her  repairs,  and  to  take  care 
that  a  sufficient  force  was  in  readiness  to  enforce  that  order  of  suspeii 
-sion.  This  was  done,  by  a  public  notice,  on  the  sanie  day,  (I4th  Febru 
ary,  18G."».)''  Captain  Waddell  thereupon  remonstrated  by  letter  of  that 
date." 

The  execution  [he  said]  of  the  warrant  wiw  not  refused,  as  no  such  person  as  tlic 
one  Hpecified  wan  on  hoanl  ;  but  permission  to  ifarch  the  ship  wiis  refused.  *  " 
Oiir  Shipping;  Articles  liuve  been  shown  to  the  Superintendent  of  rolice,  .Ml  stran- 
gers have  been  sent  out  of  the  shij),  and  two  vommtHHtoned  officerx  wvri'  ordvred  to  Hiarch  if 
any  mch  hare  been  left  on  board.  They  have  reported  to  me  that,  after  making  a  tboroiKjh 
search,  they  can  find  no  pemon  on  board  except  thone  who  enteied  thin  jMrt  an  part  of  the  com- 
plement of  nwn.  I,  therefore,  an  Commander  of  the  nhip,  repreitntiny  my  Government  in 
lirit'uih  watern,  hare  h  inform  hin  Eicelleney  that  there  are  no  pernonn  on  board  this  kMii 
except  those  whose  names  are  «ii  my  Shipping  Articles,  and  that  no  one  has  been  enlisted  in 
the  serrice  of  the  Confederate  States  since  my  arriral  in  this  port :  nor  hare  I,  in  any  woij, 
riolaled  the  neutrality  of  the  itort. 


»  Hritisli  App.,  vol.  v,  p.  Ti^S. 
•  Ibid.,p.  :V>1. 


''British  Appendix,  y 
*  Ibid.,  vol.  I.  y>.  524. 


\T)1.  V,  pp.  7H,7y. 


f'Ibid.,  p.  r.*'.. 
•Ibid.,  p.  t>4l 


IJRITISU    AKCIUMEXT SHENANDOAH. 


r>23 


ivi-   not  any  one 


On  the  next  day,  ho\vov«;r.  (tlie  l.ltli,)  certain  men  wlio  had  been  on 
board,  as  described  in  Williams's  antl  Madden's  aflidavits,  left  the  She- 
nandoah, fonr  of  whom,  beinjLf  observed,  were  captnred  on  landin*;; 
iiiul  amun<;  these  was  C^harley,  for  whose  apprehension  the  warrant  had 
been  issned.  An  officer  of  the  Shenandoah  was  seen  at  the  ;;an}^way 
of  the  ship,  apparently  directinj?  the  boatmen  who  took  those  four  men 
on  shore;  an<l  the  men  themselves  stated  to  the  Superintendent  of  l*o- 
lice  "  that  tliei/  hotl  been  on  hoard  a  feir  days  lodnoiot  to  tlir  Captain  : 
mul  that,  as  .soon  an  he/ound  they  iirre  on  bounty  he  ordered  them  on  nliore.'" ' 
Captain  Waddell,  when  informed  by  the  head  of  the  Customs  Depart- 
ment (15th  I'Y'bruarj',  ISO,'*)  of  the  arrest  of  these  men,  and  r»'minde«l 
l>y  him  that  they  were  thus  proved  to  have  been  on  board  on  tiie  two 
jirevious  days,  when  their  ]>resence  was  denie<l  l»y  the  ollleer  in  charj^e, 
;md  by  himself,  "necessaiily  without  having  ascertained  by  a  searcli 
that  such  men  were  not  on  board,"  answered  thus: 

I'lio  foil!'  men  iilliiiled  to  in  y<>\ii-  conininnii'iition  arv  no  {tiirt  of  tliis  vo.ssfl's  <-i>ni])l«-- 
iiient  of  nn'n  ;  tlwy  inrc  (U'tcilvd  b>i  the  xhipn  jiolicc,  after  all  xlraiiyerx  tnrc  rfiiorlnt  mil  of 
the  rcxHvl,  and  Ihei/  ireiT  onlvrcd  and  mTii  tnil  of  the  rrnnel  hi/  thr  xhiii^x  inilicv  iiHiiudiali'lii  on 
their  dincorery,  wliich  was  after  my  letter  liail  lieen  (li.s[)atehe*l  informin<;  his  l-^xeelleiiey 
tlio  Governor  tliat  there  were  no  .such  jiersons  on  board.  Thexc  nun  irire  Inn  witlnnil 
my  knowledf/e,  and  I  hare  no  donbt  eon  properly  lie  eulled  xlownn-ayx  ;  and  xnth  theij  nuinld 
have  remained,  hat  for  the  riijilanve  of  the  xhip'x  p<diee,  inaxmueh  ax  they  irere  detected  afirr 
Ihe  third  neareh  ;  l>nt  in  no  way  can  I  l»e  accused,  in  truth,  of  being  cognizant  of  an  e,  ;i- 
sion  of  the  Foreign-Enlistment  Act.-' 

In  the  depositions  of  Williams  and  ]\[adden,  taken  before  the  magis- 
trate on  the  IGth  February,  it  was  stated  that  certain  of  the  subordinate 
nflicersof  the  ship  (not  Captain  Waddell)  were  (iogni/ant  of  the  presenc*' 
of  Charlej'  in  the  forecastle  of  the  ship;  but  these  statements  were  Jiot 
contirnied  by  the  other  witnesses;  and  no  similar  evidence  was  given  as 
to  the  rest  of  the  prisoners. '  The  particular  officers  of  the  Shenandoah, 
as  to  whom  these  statements  were  made  by  Williams  and  Madden,  pub- 
lished on  the  same  day  in  the  Argus,  a  ^Melbourne  newspaper,  declara- 
tions, signed  with  their  names,  most  positively  denying  all  the  statements 
afl'ecting  them  ;  and  one  of  them,  Acting-Master  Uullock,  said  that  he 
had  been  otten  asked  by  persons  on  board  if  they  could  l)e  shipited;  and 
liad  invariably  answered  :  "  Wc  van  .shij)  no  man  in  this  port,  not  eren  u 
fionthern  citizen.'^  ^ 

This  was  the  position  of  matters  when  the  I7th  of  February  arrived  : 
the  reports  of  the  detective  officers  had  preceded,  not  followed,  the  in- 
vestigations with  respect  to  the  men  alleged  to  be  actually  on  board  for 
the  purpose  of  enlistment,  and  the  solemn  and  repeated  «lecIarations 
and  promise  of  Captain  W'addell,  on  the  word  of  a  gentlenum  and  an 
officer,  confirmed  by  the  declarations  of  the  other  officers  of  the  ship. 
The  Eli  Whitney  had  been  strictly  watched.  No  further  definite  infor- 
mation had  n'ached  the  (loverunnmt,  who  believed  that  all  the  men 
who  hjid  been  secreted  on  board  the  Sheiuindoah  had  a<;tually  left  the 
vessel.^  Mr.  Mc('uIloch,  the  Chief  Secretary  of  the  (rovernment,  and 
Mr.  Harvey,  the  Minister  of  Public  Works,  expressly  so  stated  in  the 
Debates  of  the  Legislative  Council  of  the  15th  and  l(»th  February,  the 

British  App.,  vol.  v,  pp.  527,  :A%  r>4.'>,  r>75>.      "■  Ibid.,  pp.  f)4.'>,  GW.      '  Ibi«l.,  pp.  5:17,  54.'>. 

*  Itritish  Appendix,  v«d.  i,  pp.  .W-aJH.  It  n|»pearH  fr<nn  the  depositions  that  there  were 
<it  this  time  (»nd,  indeed,  until  the  vessel  left  the  port)  many  men  working  on  board  ; 
Old  it  nniy  Ite  collected  also  from  the  depositions  that  the  fonr  prisoners  came  or 
riiniained  on  Itoanl  of  their  own  accord,  being  desirous  of  going  to  sen  in  her;  although 
the  fact  that  tlu-y  were  there  niny  subsefpiently  have  come  to  the  knowledg*-  of  some 
"f  the  ofticerH. 

•See.  also,  Lord  I'anterbnrv's  dispatch  of  November  (»,  1^71  ;  Uritish  Appendix,  vol. 
>.  p.  (51. 


i 


524 


Sri'l'LEMEXTARY    AR(JI  MENTS    AND    STATEMENTS. 


u 


w 


ill 


<  i\, 


latter  iiiiiiistor  sayiiifr,  (l.jth  rcbniaiy  :) '  "  It  was  now  known  thai  scv 
eral  uicn  who  .shipped  in  Ilobtson's  Hay  had  escaped,  in  addition  to  tlic 
four  who  were  captured."    And  although,  on  the  17th  February,  (on 
sul  Itlanchard  again  requested  attention  to  the  statement  containetl  in 
the  aflidavits  originally  sent,  (and  in  certain  other  attidivits  of  persims 
who  were  also  produced  as  witnesses  against  the  four  prisoners,)  tluit 
there  had  been,  at  the  dates  when  those  witnesses  left  the  vessel,  ten 
or  more  persons  on  board  under  similar  circumstances,  (the  witnesses 
speaking  with  wide  variations  as  to  the  number;)-  this  was  not  incon 
sistcnt  with  the  belief  of  the  (iovenunent  that  all  such  persons  had  nt- 
terward  left  the  ship,  especially  as,  in  the  depositions  of  the  same  wit 
nesses  before  the  magistrate,  (except  that  of  Williams  in  one  case,  on 
cross-examination,)  no  mention  whatever  was  made  of  any  such  otlici 
persons;  which  was  also  the  case  on  tln^  subsecjuent  trial, in  Marc'.i  fol- 
lowing.'   It  is  further  to  be  remembered  that  on  the  17th  February  the 
prosecutions  against  these  four  men  (who  were  not  trie<l  till  the  17th 
March)  were  actually  i>ending. 

As  matters  then  stood,  however  unsatisfacttiry  some  of  the  circiun 
stances  might  have  been,  it  would  be  very  ditlicult  for  any  candid  mind 
to  draw  a  sound  distinction  between  the  position  of  ('aptain  Wadtleil 
with  respect  to  the  men  alleged  by  him  to  be  "  stowaways,"  and  that  ot 
Captain  Winslow,  of  the  United  States  ship  Kearsarge,  with  respect  to 
the  sixteen  or  se>enteen  men  taken  in   that  ship  from  (^neenstown  to 
the  coast  of  France.'     If  Captain  Winslow,  as  a  man   of  honor,  Wiis 
properly  exoiu'rated,  upon  his  own  solemn  assurance,  from  responsibility 
for  that  act,  in  whicli  some  of  his  subordiiuites  must  have,  to  some  ex 
tent,  participated,  and  as  to  which  his  own  conduct  on  the  French  coast. 
before  he  sent  the  men  back,  was  certainly  not  free  from  indiscretion. 
can  it  be  imputed  as  a  want  of  due  diligence  to  the  (lovernment  of  Mel- 
bourne (whose  good  faith   and  vigilance  had  otherwise  been  so  man! 
festly  proved)  that,  although  not  entirely  satislied  with  Captain  Wad 
dell's  (lemeanor  or  conduct,  they  accepted  the  solemn  assurances  of  not 
one,  but  several  oflicers,  of  the  same  race  and  blood,  and  with  the  siinie 
claims  to  the  character  of  geutlenuMi  as  the  oflicers  of  the  United  States  .* 

In  the  nu^norandum  sent  home  by  Lord  Canterbury  on  the  (ith  of 
November,  1871,  signed  Itythe  gentlemen  who  were  the  Chief  Secretary. 
Commissioner  of  Customs,  Minister  of  Justice,  and  Attorney-Ceneral  ot 
the  Colony  when  the  Shenaiuloah  was  at  Melbourne,  it  is  thus  stated: 

While  file  Siii-iiinuli):ili  was  in  jxn't  tia-ie  wert'  iiiiiiiy  vajjtiie  rninors  in  circ'iiliitiini 
that  it  was  the  inleiif  ion  of  a  niiinlicr  of  nn-n  to  sail  in  her  ;  but  alllioiifih  the  polite  un- 
IhorilicM  made  tirrn  fjrrtioii  to  tiscrrtoiii  tin-  truth  of  ihi'xe  niiiiorn,  yet  (with  the  ox('e]ttic)ii 
of  the  four  men  allmletl  to)  notliinfjsnllieicntly  detinite  to  .justify  ciiniinal  proceediiij;'' 
eoidd  be  aseeitainetl  ;  iiuhcd,  at  the  best,  these  iiunors  Justilied  iiothin<>  mori-  tliiiu 
Miispieion,  and  lallxl  oiitij  for  that  iratvhfiilnenn  irhirh  the  Hon'nimi'iit  cxcrcixctl  to  Ihr  fiitlcl 
vxti'iit  ill  itHjMtnr.  It  was  not  until  after  the  >iUi''iiaudoali  had  left  the  waters  of  Vk- 
toiia  that  the  (ioviTnuH'ut  re«tivt'<l  infoiinatiou  eonlirniin;;  in  a  inaniu'i'  tln'  trutli  of 
those  inmoi-s.'' 

In  the  report  froin^the  oflice  of  the  Chief  Commissioner  of  Police,  «lated 
October  L'G,  1871,  it  is  also  stated  that  "on  the  lOth  February  repre- 
sentations were  again  made  to  the  Government  that  the  Foreign  En 
listment  Act  was  being  violated ;  and  the  police  were  instructed  to  use 
their  utmost  eforts  to  prevent  this ;  but,  as  no  visitors  were  allowed  on 


'  British  Appendix,  vol.  i,  pp.  «33,  6:M5.  -  Ibid.,  pp.  600,  611.  (JbV 

»Ibia.,  pp.  5:t7,  r>4.'»,  .'ifi-^,  r)7l. 

<See  I'nitvd   .States   Ajipendix,  vol.  ii,  pp.  411M.'>4;  particularly  pp.  429,  4:<ii.  4:U. 
and  448. 

■'  British  App.,  vol.  v,  p.  W-i. 


k;.. 


BRITISM    AU(JUMKXT — 8IIKNANI)OAH. 


525 


board  the  SluMUindoali,  under  any  pretense,  tor  three  (hiys  before  she 
sailed,  and  in  the  absence  of  any  of  Her  Ma  jes:  ;'s  ships  in  our  waters 
at  the  time,  the  ettbrts  of  the  water-police  were  necessarily  of  little 
avail." » 

Late  in  the  afternoon  (about  Op.  ni.)of  the  J 7th  F<'bruary,  the  United 
States  Consul  received  information  from  one  Forbes,  which  was  after 
ward,  on  the  same  eveninj;,  reduced  into  the  shape  of  an  altidavit,  and 
intrusted  to  a  ^fr.  Lord,  with  a  view  to  bein^'  placed  in  the  hands  of 
the  water-police,  too  late,  however,  (in  Mr.  Lord's  Judgment,)  to  be  so 
acted  upon.  From  the  haste  with  which  the  Consul  was  obliged  to  act 
in  this  matter,  and  the  inability  of  the  Crown  }Solicitor  to  take  the  atti- 
ilavit,  some  misunderstanding  arose,  which,  however,  ceases  to  be  in 
any  way  material,  when  the  substance  of  the  information  is  legarded. 
What  was  that  information  '  That  tive  jumsous,  named  by  Forbes, 
standing  on  the  railway  pier  at  San<lridge,  at  4o'clo(;k  p.m.,  on  tlu^  17th 
of  February,  admitted  to  him  (by  the  statement  of  one  of  them,  made  in 
the  i)rescnce  of  the  rest)  that  they  were  ''//oi/j//  on  hoard  the  Maria  lioss, 
thni  lifiiiff  in  flic  baif  ready/or  sea  ;"  aiul  tliat,  "  trhcn  the  c^htnandoah  gol 
outside  the  Heads,  the  boats  from  the  Maria  lioss  were  to  come  to  tale  them 
on  hoard  at  Tt  (U'loch;"'  i\th\\u}<;,  '■'■that  there  n-< re  mant/  more,  besides  his 
jHirtif,  ffoinp  the  stniie  /rrf//.'"- 

Tliis  statement,  so  far  as  it  may  be  considered  to  iiave  reached  any 
otlicer  of  the  (lovernment  in  time  for  action,  directed  their  attention 
lH)sitively  and  exclusively  to  the  ]\Lnia  Itoss  as  the  juedium  intended 
to  be  used  for  the  api)reheiuled  recruitment.  The  (lovernment  did  their 
duty  vigilantly  with  respect  to  this  ship,  the  Maria  Ifoss.  She  was  twice 
searched;  once  by  the  crew  of  the  Customs  boat  and  once  again  at  the 
Heads;  and  it  was  proved  to  the  satisfaction  of  Detective  Kennedy  (nor 
is  there  any  reason  now  to  doubt  the  fact)  that,  when  she  sailed  on  the 
morning  of  the  l.Sth  February,  there  were  no  men  on  board  her,  except 
lier  crew. ' 

The  information  wlii«*h  had  thus  been  given  as  to  the  supposed  inten- 
tion to  transfer  men  to  the  tShenandoah  from  the  ^laria  Jtoss  may  per- 
haps supply  an  intelligent  reason  for  the  fact  that,  on  the  night  of  the 
17th,  the  police-boat,  instead  of  remaining  oti"  shore,  pulled  in  the  direc- 
tion of  that  part  of  the  bay  in  or  near  which  the  Shenandoah  was  lying.^ 

Of  the  shipment  of  men,  which  did  undoubtedly  take  place  on  the 
night  of  the  17th  February  just  before  the  Shenandoah  left,  whatever 
may  have  been  its  real  amount,  and  of  the  means  by  which  it  was 
accomplished,  the  Government  of  Victoria  had  neither  knowledge  nor 
means  of  information.  The  best  evidence  of  the  facts  relating  to  it 
is  that  which  was  collected  shortly  after  the  Shenandoah  had  sailed  by 
the  Government  of  Melbourne  itself,  and  which  was  ))ublished  at  the 
time,  without  the  least  disguise,  by  Iler  Majesty's  Government.  The 
substance  of  that  evidence  shall  here  be  concisely  stated  ;  and  some 
letiiarks  must  afterward  be  made  on  the  aflidavit  of  Temple,  sworn  at 
Liverpool  in  December,  18G.1,  and  on  that  of  Ebenezer  Nye,  sworn  in 
the  United  States  on  the  22d  September,  1871. 

The  Melbourne  newspapers  of  the  liOth  Februaiy,  18G,"»,  spoke  of  cer- 
tain rumors  (which  were  believed  to  be  partially  true,  though  exagger- 
ated as  to  number)  that  the  Shenandoah  had  taken  away  with  lier 
•'about  eighty  men."  These  reports  were  at  once  ordere<l  to  be  investi- 
),'uted  by  the  i)olice.    It  appeared  that  seven  men  of  AVilliamstown, 


'  British  App.,  vol. 
-  Iliifl.,  vol.  i.  p.  •">.').' 


p.  \'i\. 


••Il)i«l.,  vol.  V,  ]>p.  lyo.  I'Jl. 
^  Ihitl..  vol.  i.  p.  .'i.'il. 


r)26 


Sri'l'LKMENTAKY    ARGUMKNTK   AND   STATEMENTS. 


I. 


if 

If' 


li 
I- 

tr 


who  hail  been  employed  in  coaling  tlie  Slienandoali,  went  on  board  iici 
on  the  niornini;  of  the  18tb,  just  as  sbo  sailed,  under  pretense  of  ^rct- 
ting  paiil  for  tbeir  work,  and  did  not  return.  So  far,  intpiiry  seems  to 
have  been  made  as  to  the  occasion  for  tbeir  going.  They  went  by  day 
light,  and  the  occasion  alleged  was  credible  and  lawful.  Other  nieii 
were  taken  ott'  in  boats  between  0  o'clock  y*.  ni.  and  midnight  on  the  ITtli. 
from  the  Sandridge  Kailway  IMer;  their  numbers  were  variously  re. 
ported.  According  to  the  information  obtained  by  Detective  Kennedy. 
chieHy  from  Itobbins,  there  were  five  boats  employed  ;  according  to  that 
of  Superintenilent  Lyttelton,  about  40  men  were  in  the  scnth  near  the 
j)ier,  and  three  other  boats  went  olV  with  eiffhteen  men.  There  was 
(according  to  the  boatmen)  an  oflicer  of  the  Shenandoah  standing  on 
the  pier.  Constable  Minto,  who  was  on  duty  at  the  pier  at !)  j).  m.  on 
that  evening,  "observed  threes  watermen's  boats  leave  the  i)ier  and  pull 
toward  the  Shenandoah,  <'ach  boat  containing  about  six  passengers," 
and  saw  a  person  in  j)lain  <;lothes,  whom  hi^  believed  to  bo  an  ollicor  ot 
that  ship,  superintending  the  en)l>arkati(ui.  He  was  succeeded  on  duty 
by  another  constable,  named  Knox,  who,  on  Minto's  return  at  midni;;lit. 
told  him  that,  "during  the  absence  of  the  police-boat,  (which  had 
pulled  oil",  as  already  stated,  into  the  bay,)  three  or  four  boats  iiad  lett 
the  ]>ier  for  the  Shenandoah,  containing  in  all  about  twenty  passen- 
gers."' lJesid<'s  these,  it  appears  that  one  otlicer  (Blacker)  Joined  the 
Shenandoah,  from  a  ship  called  the  Saxonia,  under  <urcnmstances  of 
which  theColoniaUiovernment  could  have  had  no  notice  whatever. 

It  is  impossible  to  rely  on  the  accuracy,  as  to  numbers,  of  these 
estimates,  which,  if  taken  at  their  maximum,  would  appear  to  give 
about  thirty-eight  or  forty  men,  exclusive  of  the  seven  others  from 
Williamstown,  who  went  on  the  morning  of  the  l.Sth  February.  But  ot 
these,  again,  it  would  be  ver^  hazardous  to  assume  that  all  were  re 
emits,  whetlier  British  subjecis  or  foreigners.  Some  (a  very  few  only 
were  identified  by  name)  were  undoubte<lly  both  recruits  and  British 
subjects ;  and  whether  the  number  of  them  was  greater  or  less,  the 
ottense  of  Captain  AVaddell  was  very  justly  regarded  by  (Jovernor  Dar 
ling  as  a  serious  one  against  ller  Majesty's  neutrality.  But  it  is  con- 
sistent w  ith  all  probability  and  experience  that  some  of  the  proper  crew 
of  the  Shenandoah  may  have  remained  on  shore  (as  sailors  constantly 
do)  to  the  last  moment,  and  may  have  returned  with  or  without  bjiggajje. 
.Justice  would  hardly  be  done  to  the  policemen,  Minto  and  Knox,  if  this 
habit  of  sailors,  and  also  the  fact  that  they  are  often  accompanied  by 
their  friends  to  the  ship,  when  nothing  wrong  is  intended,  were  not 
borne  in  mind.  Those  two  policemen  appear  to  have  told  their  story 
without  any  sign  of  consciousness  that  the  circumstances  had  made  it 
their  duty  to  interfere  with  the  boats  and  persons  in  question.  B",  in 
this  respect,  they  should  be  deemed  to  have  misconceived  or  to  have 
failed  in  their  duty,  it  is  surely  out  of  the  «piestion  to  hold  (ireat 
Britain  responsible  on  that  account. 

It  now  becomes  necessary  to  advert  to  the  part  taken  by  tieorjre 
Washington  Bobbins  (whose  allidavit,  sworn  on  the  21st  of  September, 
1871,  is  made  part  of  their  evidence  by  the  United  States)  as  to  this 
transaction.  Bobbins  was  a  stevedore  at  Melbourne  ;  he  gave  informa- 
tion, at  the  time  of  the  iinpiiry  there,  as  to  these  events,  to  the  Mel- 
bourne police  and  others.  He  stated  to  Detective  Kennedy^  that  be- 
tween 10  and  11  o'clock  Jit  night,  on  the  17th  of  February,  he  was  him- 


Rritifih  App.,  vol.  i,  jtp.  550-55l<. 


^  Ibid.,  p.  r»f)0. 


BRITISH    AKGUMENT SHENANDOAH. 


52  T 


Hcif  ill  a  boat  aloii;;:si(Io  the  Shenandoah,  uiul  saw  Itilcy's  lioat,  (\Yith' 
twelve  men,)  and  four  other  boats,  put  men  on  board  that  vessel.  He 
also  stated  to  Superintendent  Lyttleton'  that  *'he  passed  across  the  bay 
ou  that  night,  with  a  message  from  the  American  Consul  to  the  police, 
to  the  etl'ect  tliat  the  Shenandoah  was  shipping  men  ou  board  ;  and,  on 
his  way,  saw  a  boat  pulled  by  Jack  Kiley  and  a  man  named  Muir  ;  they 
had  about  twelve  men  in  the  boat.  On  his  return,  Itiley  and  Muir,  be- 
ing alone,  ])ulled  oft"  from  the  Shenandoah." 
Consul  lilanchard  (to  Mr.  Seward,  February  '-*'{)  says  ;- 

During  tli(>  iii^lit  Movcriil  pcrsoiis  (MitltijivorcMl  to  liiid  uw,  to  ^ivt'  iiiformatidii  ol'  Mic 
■ihi|)iiiiMit  of  men  for  Hiiid  vossiil.  (hir  llohhitiH,  a  mantcr  Hli-rrdoiT,  foiiiui  mr  at  11  u'clork 
/).  m.,  antl  iiilbniit'd  iiim  tliat.  Iioat-loatls  of  iiicii  with  tiM-ir  In^rKa^c.  wirt;  leaving  tlif 
wliarf  at  Saii<Irid<r(;,  uiid  Koiiij;  dirccMy  on  hoiird  Huid  vtvssol ;  and  that  the  ordinary 
|i(ili(;o- boats  \v(;nt  not  to  W.  mum  in  tho  hay.  I  informed  Haid  RolihiiiH  that'  Mr.  Stnrt, 
|polic»\niii<;istrato,  told  mo  tho  wattir-polion  wt-rn  tho  inopcr  pcnsons  to  h)d;j;o  any  in- 
iDfinatioM  with;  and  that  h(>,  as  a  irood  snltjoct,  was  lioniid  to  inform  tlirm  of  any 
violation  of  law  that  canto  iindor  his  not  lor,  whi«;h  ho  promisod  to  do.  "  *  "  On 
tilt)  IHth  of  I'V'bruary  tho  aforesaid  Mr.  Itohhins  oalhtA  at  tho  C'oiisulatc,  ami  informod 
iiutthiitHix  l>oat-loads  <d'  nittn  loft  tho  wharf  with  tlnnr  In^r^a^o  during  tho  provionK 
ni(;ht,  and  that  thoy  woro  taktMi  on  hoard  saitl  vossol  thron;;ii  tin*  propolloi's  hoisf- 
liolo.  WluMi  asUod  to  ^ivo  his  atliilavit,  ho  said,  as  tho  otiicials  wonid  tako  no  notioo 
bo  wonld  only  injnro  his  hnsinoss  by  n(»  doinji;,  and  liodotdintMl.  lit*  statod  that  about 
seventy  inon  wont  on  board  said  vossol  (mi  tlm  nijjht  of  tho  17th  Fobruary,  and  thai 
iftme  of  lliem  took  and  iixcd  hix  lioaf  to  tjo  in.  Captain  Soars,  t»f  tho  Ainorican  Itark 
Mnstanir,  was  on  tho  wharf  watohin<> ;  who  informs  nn;  that  ho  saw  sovoral  boat-loads 
(if  ninn  with  ln};^a<{o  go  to  said  vessel  winio  lying  in  tint  bay  ;  and  that  ho  also  saw 
Kubbins  go  to  tho  police. 

It  is  manifest,  from  all  the  foregoing  evideiuH',  that  Kobbins  did  not 
go  to  the  police  till  after  mitlnight  on  the  17th  February,  when  all  tlu^ 
men  in  (piestion  had  already  been  sliip[>ed.  Arul,  if  the  nature  of  what 
was  being  done  was  at  the  time  clearly  manifest,  it  might  have  been  ex- 
pected that  some  interference  by  the  police  would  have  been  previously 
invited  by  the  American  Captain  Sears,  who  witnessed  the  dep.irture 
of  so  many  boats  full  of  men.  J{obbins,  in  his  atlidavit  of  the  2lHt 
September,  1871,  does  not  undertake  to  say  more  as  to  the  number  of 
men  who  were  shipped  than  this:  "J  know  that  several  men,  residents 
of  this  port,  went  on  board  the  Shenandoah  in  this  ])ort,  as  addition  to 
lier  crew,  ami  went  away  in  her,"  naming  two  individuals  who  did  so. 
rie  also  there  says,  "  I  reported  to  the  water-police  at  Williamstown" 
(i.  e.,  on  the  opposite  side  of  the  bay,  where  their  station  was)  "the 
shipping  of  the  nu»n,  but  they  said  they  were  powerless  to  interfere 
without  directions  from  the  head  authorities  in  Melbourne."'  At  that 
time  the  recruitment  of  the  night  in  question  had  been  fully  accom- 
plished. 

It  is  .submitted,  that  nothingcan  more  plainly  establish  the  good  faith 
and  zeal,  in  this  whole  matter,  of  the  (lovernment  of  Victoria,  than  the 
resentment  whi(!h  they  inunediately  manifested  at  the  breach  of  Captain 
Waddell's  honorable  engagement  and  at  the  violation  of  Her  Majesty'.s 
iieutrjility  which  had  thu.s  taken  place.  A  resolution  was  at  once  passed 
to  refuse  all  further  hospitalities  to  the  Shenandoah  in  the  event  of  her 
return;  and  information  was  prom|>tly  given  (February  27,  ISO"*)  to  the 
(iovernors  of  all  the  neighboring  lUitish  Colonies  that  they  might  adopt 
a  similar  course.^ 

With  resju'cl  to  Tetnple's  affidavit,  its  only  bearing  is  upon  the  tjues 
tion  what  number  of  men  were  shipped  by  the  Slienandoah  at  Mel- 
bourne, and  whether  those  were,  or  were  not,  British  subjticts.     Apart 

'British  App.,  vol.  i,  p.  ^t^y'i,  -'Appendix  to  United  iStates  ('ounter  (.'ase,  p.  llKu 

Mbid,,  p.  bH7.  *  lUitish  Appendix,  vol.  i,  p.  .Mi."i. 


Brr 


528 


.SiriM'LEMENTAKV    Al{(»UMKNT.H    AND    STATKMKNTs, 


Hi' 

Ml 


^i  i 


I 


i.  1  ; 


I « 


ii 


I 


r^ 


m 


from  iiiiy  (>\friiiNi(;  coiiHriiuitiun  wliicli  it   riiiiy  We  coiisidcnMl  to  rcccivi' 
from  inort!  trii^ttwortliy  (iiiurttTH,  no  rcliaiK;^  can  bo  placed  uiioii  tlii> 
truth  of  any  word  spoken  by  thi.s  man.     Ho  in  proved'  to  have  otVtM't'd, 
in  tlio  caso  of  Captain  Corbett,  to  jrive  ovidence  then  admitted  !»>  Iiim 
self  to  be  willfully  false  ;  and  in  this  very  atlidavit  he  states  sevenil  flu 
};rant  falsehoods,  which  he  must  have  well  kiuiwn  to  be  such,  as  to  en 
tertainnM>nts  allejfed   by  him  to  have  been  ^iven  on  board  the  Sliemui 
doali,  not  only  to  other  olllcers  of  the  Colonial  Governuient,  but  to  tlir 
(JroveriHU"  of  Victoria,  Hir  Charles  Darlin;:;,  himself :  ami  also  as  to  as 
sistan(!e  in  like  luatMUM-  allej^:ed  by  him  to  have  been  ;;iven  to  Ciiptain 
Waddell,  in  the  lepairsof  the  ship,  by  the(iovernment  Surveyor  at  Mel 
bourne.- 

What  Temple  says  is,  that  when  the  Shenandoah  left  Port  Philip  she 
had  on  board  "  some  tlfty  or  sixty  persons  as  stowaways,  all  IJritish  sal) 
Jects."  Jlis  means  of  knowledffc  as  to  who  were,  and  who  w«'re  not, 
really  liritish  subjects,  do  not  ap])ear,  and  cannot  b(>  assumed.  In  the 
list  ap]M'nded  to  his  atlidavit,  tli.>  composition  of  the  crew,  when  the  sliip 
arrive<l  at  Liverpool  in  the  autumn  of  lS(»."i,  purports  to  l>e  stated.  \\\ 
that  list  it  is  made  to  appear  that  she  then  had  twenty-four  oflicers.  and 
thirty  petty  otlicers  and  men,  who  were  <mi  boani  her  at  the  time  of  lici 
arrival  at  JNlelliourne:  one  ollicer  (IJIacker,  in  place  of  another  who  liad 
left  ln'r  ther<')  and  forty-threj?  petty  olHirers  and  men,  (thirty-seven  said 
to  be  ]>ritish,  and  six  American,)  who  joined  her  at  Melbourm^;  and 
thirty-eifiht  men,  obtained  from  tin;  «*rews  of  vessels  raptured  sul)S(' 
(piently  to  lu'r  departure  from  Melbourne.  -'Some  fifty  or  sixty"  thus 
became,  even  on  his  own  showin};,  reduced  to  forty-four. 

Jt  is  submitted  that  nothing:  is  adtled  to  the  credit  or  widyht  of  Teni 
pie's  evidence,  on  these  i)Gints,  by  the  remarks  made  upon  it  in  (lover 
nor  Darlinfj's  dispatch  to  Mr.  Cardwell  of  the  Hist  March,  18(»0  : ' 

IJavinjf  oxprcsscd  to  yon  in  my  dis|»ixt(!ht :.,  U:  wliifh  yon  refer,  my  l»eliof'tliat  (iiii 
tain  Waddell  liud,  notwithstandinf;  IiIh  honorai.i'i  protestations,  Hajjiaiitly  violated 
the  neutrality  ho  was  hound  to  ohserve,  in  the  shipment  of  Dritish  citizens  to  serve  on 
Itoard  his  vessel,  I  have  read  withi>nt  surprise,  hut  with  ({ee|»  rej^ret.  the  lonj;  list  nl 
iiauies  furnished  hy  Air.  Temple,  uhUh  complctvly  jyroict  that  tli'm  hilitf  ic((s  iimlly  J'oiimkd. 

The  (Jovernor,  without  goin^  into  any  exact  computation,  was(!ontent 
to  take  the  statement  of  a  man  whom  in  other  respects  he  proved  in  the 
same  letter  to  have  sworn  to  deliberate  untruths,  as  sufficient  to  con 
tirm  his  own  fjeneral  belief,  jneviously  formed  and  expressed.  If  Teui 
pie  is  not  a  trustworthy  witness  as  to  details,  this  cannot  make  him  so; 
the  original  grounds  of  the  Governor's  own  belief  remain,  as  they  Merc 
before,  a  far  better  source  of  information. 

With  respect  to  the  affidavit  of  Ebenezer  Nye,  of  the  Abigail,  (United 
States  Appendix,  vol.  vii,  p.  93,)  he  says  nothing  of  his  own  kuowledjje, 
but  simi)ly  reports  information  said  to  have  been  given  to  him,  alter 
May,  18Gr>,  on  board  the  Shenandoah,  by  ^Ir.  Ilunt,  the  master's  mate 
of  that  ship.  Even  if  there  Mere  nothing  else  by  which  to  test  the 
value  of  such  miscalled  evidence,  it  >vould  plainly  be  of  no  value.  Hunt 
is  here  represented  as  saying  that  "  forty-two  men  Joined  the  Shenan- 
doah at  Melbourne ;  that  some  of  them  came  on  boanl  when  she  first  ar 
rived;  that  the  United  States  Consul  protested  against  their  joininfT, 
and  the  Governor  finally  attempted  to  stop  them,  and  to  search  the 
ship  ;  but  that  Captain  Waddell  would  not  allow  the  .ship  to  be  searched, 
though  a  number  of  recruits  Mere  then  on  board ;  that  the  (iovcriioi' 
was  then  about  to  seize  the  vessel,  but  that  Cjiptain  Waddell  by  his 


'  British  App.,  vol.  i,  pp.  710,711,  and  72H. 
Ihid.,  pp.  <>!»<;,  T'.'l.  audT'ia 


'Ihid.,  p.  723. 


^fmm 


BRITISH    AKCil'MKNT SHENANDOAH. 


r)29 


hid.,  p.  723 


llriinu>Hs,  uiitl  throats  to  leave  tlic  sliip  upon  the  (roveriior'H  huixls,  and 
to  return  and  reitort  the  matter  to  his  (}overnment,  obtained  her  re- 
hnise." 

The  Tribunal  knows,  from  the  eontemporanoous  documents,  wliat 
wore  tiie  real  faets,  of  which  this  is  a  (garbled  an<l  inactMirate  version. 
Tliis  sanie  Mr.  Hunt  also  wrote  a  puinphh't  called  "The  Cruise  of  the 
Shenandoah,"  sonu)  extracts  from  which  the  United  Htates  have  made 
part  of  their  evidence."  In  this  narrative,''  after  speaking  of  the  pro- 
;'res8  of  the  repairs  of  the  Hhenandoah  at  Melbourne,  a  story,  in  some 
iespe(;ts  similar,  is  told,  but  with  the  omission  of  all  the  particulars 
material  to  the  present  inquiry.  Not  one  word  is  there  sai<l  about  re- 
iTuits;  on  the  contrary,  there  is  an  implied  denial  that,  when  the  tem- 
liorary  suspension  of  the  repairs  took  place,  any  recruitnuMit  had  been 
atteujpted  or  was  intended.  "  The  work,"  lie  there  says,  "  was  nearly 
iwripleted  when  an  order  came  frotu  the  {fovernor  to  seize  the  ship,  a 
minor  having  been  widely  circulated  and  believed  that  he  iuul  a  num- 
lH>r  of  men  on  board,  intendinji^  to  take  them  to  sea  and  eidist  them  in 
nolation  of  the  u'ellestahlinlied  ralen  of  International  Law.'"'  Either  Mr. 
Ivbenezer  Xye's  memory  after  six  years  confounded  things  elsewhere 
wad  with  Mr.  Hunt's  representations,  or  those  representations  must 
have  had  in  them,  as  his  "('ruise"its«ilf  has,  a  large  element  of  "ro- 
mance." Whatever  view  may  be  a«lopted,  Mr.  Nye's  atlidavit  really 
;i(l(ls  nothing  to  the  original  evidence,  from  which  aloru^  the  truth  on 
this  subject  can  be  ascertained. 

Let  it,  however,  be  supposed  that  the  statements  of  Temple,  and  of 
Hunt,  according  to  Nye,  might  be  accepted  as  accurate ;  that,  in  all, 
forty  two  or  even  forty-lour  men  were  taken  on  board  tin;  Shenandoah 
;it  or  from  Melbourne.     The  Shenandoah  had  lost,  at  JNlel bourne,  one 
orticer  and  twenty-three  men  out  of  those  who  constituted  her  crew 
when  she  arrived  there,  (being  the  nuu),  or  the  greater  number  of  them, 
wiio  had  previously  joined  her  from  captured  vessels.)     IJy  this  assumed 
addition  her  number  of  oHicers  when  she  left  was  the  same,  and  her 
i'oinplement  of  men  was  greater  by  about  twenty  only  than  when  she 
arrived  in  the  colony.     If  sucli  an  addition  (supposing  it  were  deemed, 
contrary  to  the  effect  of  the  whole  evidence,  to  have  been  imi)roperly 
"siittered"  by  the  Colonial  Government)  were  deemed  a  sulHcient  ground 
lor  holding  Creat  liritain  responsible  to  the  United  States  for  all  her 
subsequent  captures,  it  seems  impossible  to  escape  frotn  the  conclusion 
tliat  if  the  Kearsarge  had  gone  to  sea,  and  made  captures  with  the 
sixteen  or  seventeen  men  on  board  whom  she  shippe<I  from  Queenstown, 
the  Confederates  (had  they  been  successful  in  the  war)  might  have  liehl 
(ireat  Britain  responsible  for  all  the  subsequent  captures  of  the  Kear- 
I  sarge ;  nay,  further,  that  France  is  at  this  moment  «  fortiori  respon- 
sible to  the  United  States  for  all  the  captures  made  by  the  Florida 
ifter  she  had  been  permitted  to  renovate  her  crew  in  that  country. 
On  what  ground  is  it  to  be  assumed  that  the  addition  of  this  number 
|rtf  men  was  a  direct  or  proximate  cause  of  all  or  any  of  those  captures 
so  as  to  make  Creat  liritain  responsible  for  them  ? 

True  it  is,  that  when  the  Shenandoah  came  into  Port  Philip,  on  the 

lilth  of  January,  with  seventy  hands  on  board.  Captain  King  reported 

that  "from  the  paucity  of  her  crew  at  present  she  could  not  be  very 

erticient  for  fighting  purposes."'    But  she  never  was  meant,  and  she 

I  never  was  used,  for  fighting  purposes.    Her  first  cruise,  after  leaving 

'  United  States  Appendix,  vol.  vi,  pp.  6y4-<)J)8. 
-  Ibid.,  p.  ()9ti. 


;uc 


'■'■  Hriti^h  Api»endix,  vol.  i,  p.  499. 


>mn% 


n.l 


fi3() 


sn'PLEMKNTAKV   AliGI'MKNTfS    AND    STATEMENTS. 


ei 


I 
I 


Ih'siTtsts,  hi'iiiw  with  a  coniplcnu'iit  of  otticin's  and  men  certaijiiy  uo{ 
liu'iior  tl.aii  tliat  wliiv  )i  itMiiiMiMMi  in  hor  at  iMt'lboip  im',  at'tei*  all  tin*  dc- 
.sortions  which  took  jdaco.  thoiv,  anil  botoic  any  now  enlistments.  V«.t, 
with  that  limited  number,  she  bej;an  a  series  of  tsaptnies  •,  and,  as  she 
ma«U'  thes«'  eaptnres,  slie  inereaseil  lu(r  <'rew  snc-eessively  from  tlu'  ves- 
sels taUen--tii«  Aliiia,  tlu'  I>.  (Jodfrey,  the  L.  Stacey,  the  Edward,  iiiid 
I  lie  Snsan.  11  she  had  left  Melbourne  withoni  any  reeinitment  what- 
ever,  hIu' would,  have  been  i!»  «|uite  as  j>oo<l  a  eonditiou  for  In'r  subsc- 
«|!:.'nl  cruise  as  she  was  for  her  orij^inal  <',ruise,  when  sin-  left  Desertas. 
The  whali::;:  \esseis,  wliieh  she  nu't  with  allerwai'd,  e(udd  no  luoiv 
hav.'  orti'red  resistance  to  her  than  the  nu'rehant  and  whalin;^  ships 
which  she  had  met  before. 

On  tlu>  day  <»i  lu-r  leavinjii'  INnt  I'hilij',  (i.Sth  3'ebruary.)  ("onsid  IMaii- 
chard,  who  had  theii  received  all  the  inbu'nnition  which  Uobbins  and 
others  couUl  j^''  (^  him  as  to  the  niunber  of  www  taken  on  board  dariii;; 
the  preicdin^:  nijihl,  wrote  thus  to  Mr.  MclMierson,  the  Am  'riean  Wrv 
I'onsulat  ll<d»artTown  :  *•  My  opinion  is  that  she  intends  <'onnny;  there, 
with  a  view  to  ctuuph'te  her  "(luipnu'nt,  she  havinji'  much  yet  to  do  to 
mak<-  her  formidabie.  Slii^  cannot  ti};ht  the  ^nns  she  has  on  l)oaid." 
In  point  of  fact,  her  siibsejpu'nt  cruise  was  conducted  exairtly  as  hei 
pre\  ions  cruise  bad  been,  and,  on  Temple's  sliowiu};,  she  added  to  her 
<'iew,«lnriniUf  the  interval  between  her  leavinij:  .Melbourne  ami  her  aniva! 
at  Liverpool.  thirty-eij;ht  more  nu'U,  taken  from  snbsequently-captiued 
Ncssi'ls — the  Hector.  Pearl,  (leneral  WibiaiNs,  Abijiail.  (lypsey,  \\ .  ('. 
Nye,  and  Favoiite,  It  is,  therebne,  [terfectly  apparent  from  the  whole 
hif  tory  <d'  the  ship  and  of  both  her  cruisj-s,  that  sln'  was  not  depeinleiii 
foi  her  power  to  make  captures  upon  any  addition  to  the  stren^fth  of  liei 
«'r':W  which  she  received  at  .MeUtoinne.  and  that  her  procee  lin;,'s  would, 
in  all  pndti'oility,  have  been  exa<-tly  tlu'  saun>  if  she  ha<l  nevei-  leceived 
tinit  ad<litiou.  Cau  the  Triluuial  possibly  decide  that,  for  the  whole 
losses  caused  to  Anu'rican  citizens  by  those  subseipu'ut  proceeditij>. 
the  nati(U!,  in  one  of  whose  eohunes  this  recruitment  of  men  mot  .shown 
to  be  a  pro.vimate  cau.se  oi  any  htss  whatever)  took  place,  is  to  be  held 
resi>onsd)le  t 

I'inally,  it  is  ri<L;ht  that,  on  the  part  of  (ireat  Ibitain,  but  in  the  in 
ten'si  not  of  (Ireat  lliitain  alont',  but  of  civili/ed  States  in  ^iciu'ral.  the 
attenii(Ui  oftin*  Tribunal  should  be  seiionsly  diiected  to  the  }j;eueral  mi 
portaiu'e  ot  tlM>  question  on  svhi<'h  it  is  now  abmit  to  <letei-i:ii  w. 

The  facts,  to  whi»'h  the  ili.-' -ir  f^ion  i"lates,  occurred  se\en  years  a;:!' 
in  a  reunite  c,don_\  distant  several  tlnmsaiul  lea y;ues  from  (Ireat  Britain. 
The  tloNiMUor,  who  then  adiuirnstered  the  all'airs  of  the  Colony,  li;i-> 
lon<;  been  dead.  To  hold  per.sonal  communication  with  the  olin-iais.  te 
obtain  Irom  tiu'Ui  renewed  e\|>lanatious  and  niterro^ate  them  on  po)ni> 
of  detail,  has  beeu  impossible.  To  exp«'<'t  that  the  ISritish  (ioveiineeii! 
should  be  abi"  to  state  with  exactness  every  nu'asureof  pre(;aution  then 
adopt»'d.  and  <  ry  order  uv  instructi«>n  orally  j^iven  by  the  polid 
authoiities  of  ti;e  (';»'ony  to  their  subordinates,  and  to  aci-onut  for  ainl 
explain  every  circumstance  as  to  which  a  doubt  nniy  be  sufiffc  sr.Ml. 
would  be  unrea.sonable  in  the  hij^lu  •  t  de^iree.  Nevertheless,  the  (li»\ 
ernnu'ut  of  lier  Maji'sty  has,  with  an  openiu'ss,  fidlness,  and  preei.^ioi: 
which  it  believes  to  be  eidirely  witluutl  exaii.ple  in  the  history  of  inter 
natiiund  controversies,  plaee«l  before  the  eyes  of  tin'  Arbitratcns  evii) 
fact,  every  direction  yivi'n  to  its  olllceis,  every  a<'t  of  the  iioveruor  1 1 
tl.'e  ('olo  iv  and  his<'oniU'il,  which  could  be  j^athered  from  the  record^ 


Uritiah  Appeudix,  vol  i,  ji.  617. 


"'J^W'! 


IS. 


BRITISH    AKUIMKM .SHENANDOAH. 


531 


[;crtai;il.v  not 
■r  ill!  tlu'  (Ic- 

IlKMltS.       Vt't, 

;  iuul,  as  slu' 

['n)in  tlu>  \»'s- 

Kdwanl,  aial 

litnuMit  wliiit- 

letr  1  )i'.st'itas. 
)iil«l  lit)  luorc 
whaliiiji'  sliijis 

)  Consul  I'.liin- 
1  iiobhiiis  ;ili«l 

boanl  (Jaiiii;: 
Liu  'ii<*a>i  Vice 
,  (M)uiinn'  tilt  r<'. 
h  yt't  t(»  <lo  tt» 
lias  on  Ixmrtl." 
exai'tly  as  li»'\ 
•  atWliMl  to  lii'i 
and  lier  aniviil 
K'ntly-faptim'tl 
(Jypsov.  W.  ('. 
IVoin  lh«'  wliolr 
^  not  iU'IumhU'iii 
'  str«'nj;tli«)l'lit'i 
I'l'o  linjjfs  woiiUl. 

nevt'r  itcimvimI 
.  for  tlu'  wholf 

it   i)nH*i'i'tlin^'>. 

lUMI  (iiot  slitiwii 

,'.  is  U)  he  ln'M 

I,  hut    in  tlif  wi 
^  in  ji«'U»'iiil.  till' 
)  tin'  ji^MU'ial  im 
't«'ri;ii  If. 
icvv'U  years  ii;ii' 
n  (;ivat  Uiil;iiii. 
till'  Colony,  lui^ 
I  the  oinciiils.  ti' 
'  tlMMii  on  |K»int> 
lish  (iovi'inii'oii' 
(Hnuition  tlit'ii 
olivf 


pv 

I   by  tlni  1 


a(;r«»nnt  for  ami 
liy  \w  sunt^isn-il. 
liieU'ss,  tlic  <•«►* 


oil 


and  i>n'('i.';i 
lu.siory  of  intfi 
Irliitrators  I'voi) 
J  in'  (i;ov<'nioi'  <t 
[from  the  rt'('«»iti> 


of  till!  Colony  or  of  tlio  Houn^  <lov«'rnnipnt,  or  could  he  ascuM'tained  by 
\  strict  and  careful  iii(|uiry.  This  nairativo  shows  that,  whatever  might 
li:i^"  i»een  the  feelin<>s  and  synipiithies  of  the  |)eople  of  the  Colony, 
•  feelinj^s  whi(rh,  in  a  free  eoininunity,  no  (iovernnieut  attempts  to  con- 
trol,) there  was,  t'roni  lir.st  to  last,  on  the  part  of  the  Colonial  Govern- 
ment, a  sincer*'  and  anxious  desire  to  a«ihen^  strictly  to  the  line  of 
neutral  duty.  It  is  a  narrative  of  renewed  and  e«nitinued  ]»reL'antion.s, 
renewed  and  <'ontinued  from  day  to  day  (iurinjj;  the  whole  time  that  the 
crui.ser  remaine*!  in  the  waters  of  the  Colony.  No  rea.sonable  per.son 
can  doubt  that  any  increase  of  the  Shenandoah's  armament,  any  aug- 
mentation of  her  crew,  was  a  \\\\u<i;  wlii(;h  the  Colonial  (Jovernment 
was  really  desirous  of  pi'«'v«'ntinj;  by  all  means  within  its  power.  No 
rcasoimbh^  person  can  fail  to  see  that  pn'ventitni,  in  the  latter  case,  was 
embarrassed  by  difficulties,  which  could  (Uily  be  fully  understood  by  per- 
sans  actually  on  the  spot,  and  lor  wlii<'h.  in  jud«jin};  of  the  conduct  of  the 
local  authorities,  fair  allowance  ouylit  to  be  made.  On  the  nifflit  before 
llie  .Shenandoah  left  .Mell»ourne,  a  nninbei'  of  men,  takin<;  a<lvanta};°4;  of 
ihose  dini<Milties,  contrived  to  elude  the  vij^ilance  of  tin*  authorities  and 
to  jj;et  on  lioard  the  ship,  some  under  cover  of  thci  darkiu'ss,  »)*;hers  un- 
iler  a  plausible  piclext,  which  could   lo*^  be  km>wn  to  be  untnu!. 

Whether,  (Ui  these  facts,  (Jreat  IJritain  is  to  be  «'har^ed  with  a  failure 
<tf  international  duty,  reiideiin^i'  her  liable  for  all  captures  subseipiently 
iiiatle  by  the  Slienandoah,  is  tne  <piestion  viow  b«'fore  the  Tribunal ;  and 
It  is  the  duty  of  the  Arbitrators  to  wei^^li  deliberately  the  responsi- 
liiiity  they  wiMild  uinhu'taUe  liy  deci'liii!;  this  (pu'stion  iti  the  allirma- 
tivei 

They  will  not  fail  to  observe  that  the  principle  of  sindi  a  decision  is 
wlioUs  iinlependent  of  the  three  IJules.  It  is  a  dt-cision  on  he  nature 
(it  the  proof,  on  the  charact«'r  of  the  tin'ts,  upon  whii-h  a  i»elliy<>rent 
nation  is  entitled  to  found  a  <'laim  a<<:ainst  a  neutral,  and  that  cla*m  a 
(ti'inand  for  iiKJemnity  a<4;ainst  losses  sustained  in  war  in  which  the 
iti'Utral  has  u(»  |>art  or  CMU'crn.  It  is  not  (MMilined  to  maritime  wars. 
It  extends,  anil  may  be  applied,  at  the  will  of  the  bellinevent,  to  any 
art  which  a  neutral  (lovei-nineiit  is  under  any  i'e<M>^ni/.i'd  I'.ili^jatiiui  to 
endeavor  to  prevent.  Is  it  lU'cessary  to  point  out  tliat  s'  eh  a  decision 
will  certainly  prove  a  fert  le  pie(;edei!t  ? 

Tliroujxhont  t!ie  whoh^  of  this  controversy  (Jn^at  Iliitain  has  steadily 
maintained  one  ihin^' — tli  it,  before  a  heavy  indemnity  is  exacted  from 
.1  neutral  nation  for  an  allei^-ed  violation  of  neutrality,  the  faets  charfjjed 
should,  at  any  rat*',  be  proved.  This  is  demanded  alik»'  by  the  plainest 
I'DMsiderations  of  expedie  icy  and  by  the  most  element  iry  principles  of 
justice.  If  this  Trioiinal  decides  tint,  in  a  <!a.seof  doubt  or  obs(Mirity — 
a  case,  in  other  words,  in  which  the  proof  is  imperfect,  the  fact  of  ne;j;li- 
:;viici'  not  «'learly  inadtMnif.aii  1  in  whieli  recourse  must  bi^  had  to  vajjfue 
jiresumption.s  and  conjectures — the  culi)ability  and  burden  are  to  lie 
tlirovvn  upon  the  neutral  nation,  it  will  have  established  a  j-rave  and 
most  daiifierous  precredent — a  precedent  of  which,  in  the  future,  power 

itation.  will  certainly  not  be  slow 


liil  States,  under  circiiaistauces  of  in 
fo  takeadvantajjfe. 


RoiTNDELL  Palmer. 


'X 


[TmnNliitiuii.] 

VIII -onSKHVATlONS  ADDRKSSKI)  T()  THK  TUIHINAL  BY  Mil 
CrSHINUlN  THK  NAMK  OF  THK  COlNSKL  OK  THK  IMTKIi 
STATKS,ON  THK  'ilST  Al'GlJST,  187t>,  AND  MKMORAXDl  M  AS 
TOTHKl'NLlSTMEiNTSKORTHESHKNANDOAHATMKLBolKNK. 


I 


MU.    TkESIDKNT  AND  GKNTLKMKN   of   THK  Till UUNAh  :   Tile  incscnt 

discussion  lias  its  orijjin  in  tlu'  (Umbts  expressed  at  tlu^  last  nn'ctiiij;  dm 
tlie  subject  of  the  number  of  men  enlisted  for  tlie  Shenandoah  at  .Mel 
bourne.  J'reviously  to  the  expression  of  those  doubts,  all  the  nieiiibei.. 
of  the  Tribunal  in  succession  had  announced  their  opinion  on  the  points 
involved  in  the  ;;eneral  question  of  tli<^  responsibility  of  (Ireat  Hiitiiiii 
with  rejjard  to  the  prizes  made  by  the  Siieiian(h)ah  after  her  de[)arture 
fnuii  Melbourne. 

We  have  prepared  a  Memoraiulum,  which  pioves  con';lusively  the 
correctness  of  the  statements  of  Temple,  the  perfect  agreement  between 
his  statements  and  those  of  Nye,  w  iio,  in  support  of  these  same  state 
ments,  produces  the  evi«lence  of  Jlimt,  an  otii<'er  of  the  Slietiaiidoali. 
This  Memoranilnm  also  ad«lu<*es  the  declarations  of  other  witin'sscs. 
which  coiitirni  the  evidence  of  Tenii»le,  Nye,  ami  Hunt.  In  fact,  it  is 
beyond  doubt, — 

1.  That  the  Shenandoah  enlisted  at  least  forty-three  men  at  Melbourne. 
This  number  is  indet'd  now  admittetl  by  Sir  Ikoundell  I'almer. 

2.  That  the  Shenandoah  <liscliar;4'ed  at  iMelboiirne  only  seven  men  u' 
her  <;rew,  altlioufjli  thirteen  others  left  her;  but  that  these  tl.iiteeii  wen- 
prisoners  of  war,  who  did  not  form  part  of  tin*  crew, and  there  is  n'asoii 
to  believt>  {hat  the  six  oi-  seven  others  who,  it  is  ■issert«'«l,  were  dis- 
char};»'d  at  .Melboiiine,  were  also  piisoners  of  war. 

It  follt)Ws  that   the  stren<;tli  of  the  crew  of  the  Shenainloah  was  in 
creased  by  lortv-thiee  men. 


:l; 


(•nSKin  ATIONS  ADHKSSF.KS  Af    IIMIM  NAL    l'AI{   M.  <  iSIIINO.  SV  No.M    HI 
("ONSKIL     l»i:s    r/l'ATS-INIS.    I.K    -JI    AOl'T  K','.    K'P    MI-.M(  HtANDlM    SIK 

Li:s  i:nuoi.i:mi:nts  vovm  lk  suknanixjah  a  Mi:i.i»(Hiii\K. 

MoNsiKiu  IK  riiKMDi'.M,  Mkssik.i  Its  HIT  Titiin  NAi,:   l-ii  (!is<'ii,sMioii  iictiirllf  asoii  uri 
^{inc  iliiiis  li'H(liiiit('N('\|irinH'sIiii's(l(-  lailcniirrc  Hi'iinccan  Miijct  ilii  ^7^//';•(•(lt•^^t•lm■tlt•lll^llI^ 
i|ii('  1<>  SiKMiiMMloali  a  fails  a  Mclli(iiirni'.     Avaiit  iri'iiii'ttri'  ri's  tloiilcs,  ions  Irs  itit'inlin  "< 
(III    trilMiiial,  I'liM  apirs  rantri-.  avait-nt  aiiiHinct'  Iriii'  i>|iini(iii  a  I'l'^ranl  iI<>h  poinis  riiiii 
jiris  ilans  la  ijucstion  nt'iii'ialf  (U*  la  rcs|i(insaltilil<'  (l(<  la  (iraiKlr-Mn-ta;;!!*'  an  suji'l  ilf> 
|iris('H  lailcH  par  Id  Slicnanduali  apn'H  son  (i<'pai't  <l<'  MrllMiiiiiii'. 

NiiiiH  avoMs  |)i'<-pai'<-  iin  nn'inoirf  (pii  <i«'im>iitif,  Jiis(|ii*a  I'i'vidfiicc,  rt'xactilinli' tir> 
floi'laratioiis  (|c 'r»'iii]ilt',  ic  part'ait  accord  cntic  ncm  di'darations  ct,  r'cllcs  dc  Nye  •■! 
<|ui,  a  Tappni  dc  cch  nicincs  declarations,  prodiiit  Ic  tciMoi^na<;c  iW  llniit,  oHicicr  ilii 
Shcnaiidoali.  Co  nn'inoirc  I'ait  vaUiir  aiissi  Ics  dt'claration.s  d'antrcH  It'-nioins,  cjiii  cmi- 
liiiiicnt  Ic  fcinoijriianc  dc  'I'crnpic,  dc  N\<'  ct  dc  limit.     En  cH'ct  il  est  liois  dc  dmilc; 

1.  (/lie  Ic  Sliciiandoali  a  t'xnCtV'  an  nioiiis  -V.^  lioninicM  a  Mclhoiirnc.  Cc  cliillrc  f"! 
adiiiis  aiijoiii'd'liiii,  niciiic  par  Sir  Honndcll  rainier. 

'i.  Que  Ic  .Sliciiandoali  i.'a  licenci*'  a  Mellioiiriie  i|iic  7  lioniincs  dc  son  ci|iiip:ii:i'. 
i|noi<|iie  i:{  aiilrcs  Taieiit  (|iiitt(^ :  niais  i|iie  <'eH  IK  I'-laient  i\v>*  priNiiniiicis  <lc  ;;iicri>'. 
(|iii  lie  faisaiciit  point  partic  dt^  I'l'iiiiipafic.  ct  il  y  a  lien  dc  (mire  (pie  les  li  on  7  aiiln  - 
(pK^  I'oii  i>r(''teiid  avoir  licenci('-s  a  .Mellioiirnc.  claieiit  aiiNsi  dcH  ]iriHoiinicrs  dc  (iiieirc. 

II  N'eiisnit  i|n'il  \  cut  iinc  aii^nientatioii  de  \\\  lioiiiiiics  dans  rcD'cetil'  dc  l'i'<|iii|iiiu< 
tlu  Slieiiundoali. 


Vr  "^m 


AN5KKICAX    AK(JUMKNT SUKXANDOAII. 


r)3,^ 


;».  That  tlie  word  "wmmfH"  employed  by  Nye  ntcaiis  "  siiilois,"  in  ad- 
«liti(>n  to  wlioiii  tluTO.  wen'  oti  board  tluiSlKMiandoali,  accord iii};  to  Xyc's 
own  account,  sixty  or  lllty-Hvc  other  jM'rsons,  otli(H»v.s,  lircincn,  &c.,  in 
conformity  with  the  iiarrativt'  of  Teniple  and  Hunt. 

4.  That  without  the  re  enfoi«'enient  of  lier  crew  elfectod  by  means  ot 
these  enlistments  at  Melbonrne,  tlie  Shenandoali  <'onhl  neither  liavo 
continued  her  cruise,  nor  con.sei|uentIy  have  captured  the  American 
whalers  in  the  North  Pacific. 

").  That  all  this  constituted  a  tlajjrant  violation  of  international  law, 
iuid  even  of  JJritish  niunicii»al  law,  in  the  o]Mnion  of  the  (Jovernor,  Sir 
Charles  Darlinj;,  himself. 

<>.  Thiit  finally,  and  above  all,  it  constituted  a  manifest  violation,  on 
the  part  of  the  liritish  anthoritii's,  of  the  second  Itule  of  the  Treaty, 
which  runs  thus: 

A  iii>iitriil  (■(>vi-riiiiit>iit  is  hoiinil  iini  to  ixM'init  or  HutlVr  ««itIuM'  lH>11i(r<>roMt  to  make 
use  of  its  iiorts  or  waters  an  tin-  Itant'  of  naval  operations  a;j;aiiist  the  otiier,  or  tor  tiu*. 
|iiir)it>He  or  tint  renewal  or  an;;nientation  of  military  .siipplieH  or  arms,  or  tlio  rcernit- 
iiicnt  of  men. 

The  ('ounsel  »»f  (hvat  llritain  has  just  atldressed  to  the  Tribtmal  ob- 
servations, not  mer«*ly  with  rejjard  to  the  numlwr  of  men  enlisted  at 
Melbourne,  but  also  on  the  subjtfct  of  the  lejjal  beariu};  of  the  (piestion 
of  the.se  enlistments  as  a  thesis  of  the  law  of  nations,  or  of  that  laid 
down  by  the  Treaty. 

We  frankly  confess  that  we  did  not  contemplate  so  witle  a  discussion. 
He  therefore  respe(;tfully  bey;  the  Tribunal  to  inform  us  if  the  ncvi 
(|iiestions  raised  by  Sir  Houndell  I'almer  remain  open  before  tlu^  Tri- 
liiuial. 

C.  C'rSIIlN(5. 


thirteen  wen- 
irre  is  reason 


idoah  was  in 


UANKIM    SI  i; 


•tiieileason  '>ri 

(leselinMelliilil- 

L)ns  les  nieniln'^ 

(les  points  nnii 


rexactitnde  il. 


[uioiiis.  'I"'  '"" 


;i.  (^ni-  Ic  nn>t  " nmmfii,"  employe  jiar  Nye,  voiit  dire  ''  niatclotK :  "  en  «1elior>'.  <leH(iiielH 
il  y  avait  a  Wonl  <ln  Slienaniloali,  <1  apres  le  reeit  «le  Nyt;  lui-nienie,  tio  on  r>."»  antres 
litTNonnes,  oOieiiM's,  eliantlenrs,  ft  <rtirii,  eonforni*'-nienl  an  ri'eil  <le  'I'emple  et  ile  llnnt. 

4.  (/ne,  sans  le  retifort  apporte  a  son  I'tinipajre  an  moyen  tie  ees  enroleiniMits  i\  .Mel- 
lH>in'ne,  le  Slienainloali  n'anrait  pn  ni  eontinnei'  sa  emisiere  ni,  )iar  eonse<|nent,  eap- 
nner   !es  haleiniers  ann-rieans  dans  le  hant  I'aeiliijne. 

.'i.  (^ne,  tians  toni  eeei,  il  y  a  en  nm-  violalion  llaiiianti'  dn  droit  d«»H  ^ens,  et  nn"Mni^ 
ill-   la  loi  miinii'ipale  l)ri(aMnii|i\e,  de  I'avis  nieine  dn  KiMivenn-nr  sir  Cliailes  D.irlin;;, 

<>.  t^n'eniin,  et  snrlunt,  il  y  a  lei  niw  violation  nianit'este,  de  la  pait  des  antmites  tU', 
111  (Irande-llri'taene,  de  la  seeonde  iey;le  dn  traite.  reyrle  ainsi  einn/ne : 

"I  II  ^onveineiiient  iientre  lie  doit  ni  periiieitie  ni  tolerer  (|iie  run  di-s  ltelli|;erants 
»i' scr\  e  de  ses  ports  on  de  ses  ean\  eoinnie  d'nne  hase  d'operalion  iias  ale  einitre  nn 
iiilre  lielli^i  rant  :  il  ne  doit  ni  peinietlte.  ni  luierer  iion  plus,  i|ne  I'lin  des  Welli;;eranls 
ii'iioiivelle  on  aii>;nieiii(<  ses  approxisiinineineiilH  militaires,  <|n'il  se  prociiro  ties  arines 
'Ml  liieii  eiH'ui'e  i|ll'il  feerille  des  liiilnlnes." 

Maiiili  iiant   le  <onseil  de  la  <>raiide  ltielau;ne  \  ieiil  d'adresser  an  trilninai  des  oltser- 

;itii>u-i.  iion-senleineiit  a  I'e^iaid  dn  ilnllh  des  einVileineiiis  a  .Melli<nirne,  inaisansmi  an 

I.I  it  lies  I'elations  jii!  i<lii|iies  de  la  <|ili'.'t|  i<in  de  ees  eliriileiiieiil  s,  eoinilie  these  dil  dl'uil 
■I's  ^eiis  on  dn  traite. 

N'iMis  aMiiiiiiis  t'l aiieheineiit  tin'nne  diseiission  aitssi  eteiidiie  n'enlrait  pas  dans  nos 
lir('\  isioiis      I  )es  lors,  lions  prions  U   tiilinnal   tiis  iMiinldeiiiiiii  de  nous  I'aire  savoir  si 

ii'M  ijilesl  ions  nini\  elles  sonle\  ee<.  pi'.r    sir    li'iinildell    I'.lliner    lestelil   on  Vel'les  de\  ailt  le 
iiliinial. 

C.  CI  slIINU. 


if  »le  r.«|iiipni;i- 


f 


534 


SUPPLEMENTARY    AlUJUMENTS    AND    STATEMENTS. 


RKCHUITMKNT  OF  MEN  FOR   TIIF 

BOUUNF. 


SUEXANDOAII  AT  MKL 


Mv.  (irattsiii,  IJiitish  Consul  at  TtMioritt'o,  sives  tlie earlii'st  acoouiir  ot 
t]M'  iMiinbcr  of  the  iiicii  wlio  were  on  board  the  Shenandoah  when  slit- 
parted  from  the  Laurel.  He  says  that  the  Laur«*l  broujiht  "  seventeen  sva 
men  and  twenty-four  supposed  oHieers,"  an«l  that  ''some  of  the  crew  of 
the  Laurel  Joined  the  Sea  Kinjj."  (British  A])pendi\,  vol.  i,  p.  477.)  Me 
makes  no  mention  <>f  any  of  theerew  of  the  Sea  Kiiiffremaininf;  on  lui  ; 
but  the  depositions  of  two  persons  transmitted  by  him  in  his  dispatcli 
(Fllison,  )).  t.j.'j,  and  Allen,  p.  47*.»,  lirit.  App.,  vol.  i)  show  that  unv 
ollicer  came  out  froiii  London  on  tlie  Sea  Kinji>°,  and  that  three  of  tla- 
crew  of  the  Sea  Kiny;  remained  on  her. 

AVilliam  .V.  Temple,  a  sailor  on  board,  jjives  the  next  aeeount,  in  ;i 
deposition  sworn  to  in  Livi'rpool  on  thei  lUh  day  of  l>«'eembei',  isv,:,. 
Jle  };ives  the  names  of  two  otlieers  whoeame  out  in  the  Sea  Kinj;-  (Voni 
Lon«lon,  of  twenty-two  oHIeers  who  Joined  her  fiom  the  Liiurel,  nl  ten 
petty  (dlieers  whoJoine<l  her  from  the  same  vessel,  of  four  seamen  siiid 
two  liremen  who  Jt>ined  her  from  the  same  vessel,  an<l  of  one  seaman 
and  two  liremen  who  eame  out  in  her  from  Louilon.  It  appears  !>y  tlic 
atlidavit  of  (Jeorye  Sylvester  (Am.  App.,  vol.  vi,  )>.  (JOS)  that  he  iilsu 
eame  out  in  the  Laurel  as  a  eomnnui  sailor,  and  K-*t  the  Shenandoah  at 
.Melbourne.  II is  name,  therefore,  should  be  ad«led  to  Temple's  list. 
Assnminfj,  what  is  un<loubte<lly  the  liurt,  that  Mr.  (iratton,  un«ler  the 
term  "  ere w,"' embraced  i)etty  otlieers,  seamen,  and  firemen,  there  is  no 
disereianey  between  these  statements.  Mr.  (iratton  j;iv«'s  twenty  tour 
ottieers  to  the  Shenandoah  ;  Temple  «jives  twenty-f<»ur  also,  twenty-two 
of  whom  are  from  the  Laurel.  Mr.  (iratton  says  that  out  of  seventeen 
seamen  by  the  Laurel  "some  did  not  join  the  Shenandoah."  Temple, 
addin;]^  Sylvester's  name  to  his  list,  j;ives  the  names  of  sixteen  p«'tty 
otlieers,  seamen,  and  liremen  who  did  Join  from  the  Laurel,  antl  also  ot 
three  seamen  and  tiremen  who  joined  front  the  Sea  Kin^.     So  far  as  the 


M/'MoL'.ixnnr 

Siir  lex  etni'tlementH pour  le  Sluiiundouh  a  Milboinin. 

M.  <iiattiiii,  roiisiil  liritamiii|ur  ;'i  'I'l'in-iillt'  iciid  coiuptf  If  ini'inifi' <lii  iniiiiliic  dis 
lioinnu's  (|ui  Hf  tioiivaitMil  ix  lioiil  <lu  Shciiiiiidoiili  liii'.s(|iif  cc  vaisscan  i|iiitta  li-  Laintl. 
II  dit  <iu(' lo  I.a'.ii't'l  aiiifiia  "  dix-Hi-pt,  niatflots  vt  viii;;!  i|iialn'  (illififis  siipixisi's  :  "  el 
"(|ii(i  «|iicl(iiU'S  lioiniiifs  di'  IViiiiipa^t'  dii  l.aiirtd  iiKinti  Tfiil  sur  If  Sea  Kiii;^."  (Itiit. 
App..  V(d.  i,  v^.  477.) 

11  lie  dit  pas  s\\  rcsta  des  lioiniiM's  faisant  partif  ilf  r.'(|iiipa;j«'  dii  Sea  Kiiiji  a  Imid  i\v 
CO  vaissrau  ;  iiiais  Ics  d<''positiiiiis  dv  diMix  pcrsiniiiis  franNiiiJNfs  par  liii  dans  sa  dcp'Tlir 
(Ellisdii.  p.  47^  ;  Allen,  p.471t;  Urit.  App..  vcd.  1 )  inimlifnt  i|n'nn  (illicifi'arrivadc  I.onilio 
8ur  If  Sra   Kin<;  ft  <\\\i-  tinis  ImninifM  df  I'l'ijiiipajif  ifslfifnl   .i  lund  d»!  cf  v.iissfan. 

AViiliam  A.  'I'finplf,  nnitilot  a  lioid  dii  Mii.ssfan.  ilans  iinf  df  pnHitioii  laitc  sons  mi- 
mout  a  lavfipMid,  le  li  dr'ccnild'f  H»i.'i.  donnc  Ifs  nonis  df  dfn\  'iincifi's  «|ni  arrivfrciii 
d<'  I.tHidrt's  sur  If  Sfa  Km){,  df  \  i;.;t-tlfux  I'llicuis  i|iii  passf  if  ni  In  Sfa  Kin;;  a  IhihI  <1ii 
Slii'iiandoali,  i\r  i|natrf  niatfli>t>  ft  <lf  denx  poiiipif  is-nifi  anii  inis  <|iii  lirfiit  df  imiiim'. 
ft  d'nii  inatflot  d  dfux  pompifrs-nn  •  anif  ifiis  tpii  aiiivfi'tiil  df  l.inidi'fH  a  Imrd  iln 
nifiiif  vaissfaii.  II  paiaU  par  I'dtfiditrii  df  (ii'oi^f  Sijvfstfi'  i  Vni.  Ap|t.,  vol.  (I,  \>.  (i(l"ii|iii' 
ff  dfinifi' ariiva  anssi  >.nr  If  Lanit-l  (uniMif  iiiai«  lid  ft  (in'il  '(iiitta  If  Slifiiandoalin 
Mt'llionnif  ;  if  se rait  dfiif  fnfiu'f  mi  nmn  a  a.jontfi'  a  la  listf  lU-  Tfinplf. 

Kn  sn|»pi).saiitf  if  ipii  fst  f  vidfinuu- nt  If  fait,  )|iic  M. » JrattmH,  siui  i  lo  tf  nne  i'i(nipiij.'i'. 
a  I'Dinpi'is  Ifs  ollii  if  IS  snl>aitfrn«"v  ^-s  inat'-lots  ft  If.>»  Uiffiin-M-H'wspoinitif  is,  il  h'i'M^Ii 
aiifiiiif  font  laiilft  inn  fntn- ffs  d<i'-;i  rat  ions.  M,KraMan  <k»iinr  >  ui>{!-i|iiatrf  nlliri'  is  an 
Slifnandiiali,  'i'finplf  Iiii  fii  d<nin  » in;it-i|natrf  ;in.-!>i,  di>»i'  >->.;ij:t-dfii"-.  .sunt  ■!'.  Sluiiiin- 
dnali.  M.  (iraltan  dit  i|nf  dfs  dix  M'pt  nialfln.'*  dn  1,  ihk-;,  t  v  fv  i  ut  iMii  irfiitKiiiit 
pas  dans  ri''i|nipa;>f  dn  siicnjindna!  ;  Tfinpi*'.  f ti  a.if>«iti»tii  .-i  su  n>«ff  !i' iioiii  df  •'lylvf^lii. 
doniif  Ifs  iiiPiiis  df  sfi/i'  nllififrs  Milialtf  i  tn-s,  iiiiit»->ni«i  oi  inffa'iif  if  ns-ponipifi^*.  m''' 
niiittfifiit  If  l.aniil  jMini   s'linlianiiifr  siii  ic  S|,i-n.i?>d())ih  ft  anssi  df  trnis  niai'l"'^ 


-T^"""^"?^!, 


.^1 


AMKKICAN    ARiilMENT SIIKXAXDOAII. 


535 


AT  MEL 


:  ae(!oniU  oi' 
1  wlicti  slic 
,'t»nte('ii  st'ii 
tliP  <;ii'\v  of 
>,  477.)  n«' 
liii^on  lifi". 
lis  (lispatrli 
)\v  that  «>iit' 
tliivn  of  till- 

icoomitjn  !» 
L'liilu'r,  ISCm. 
\  Kiiifi  from 

!U1V«'1,  of  tt'll 

soainoii  iiiitl 
one.  sciuuan 
ipcars  5)y  tlic 
that  he  also 
ieiian*h>ali  at 
IVinple's  list. 
til,  umler  tlu' 
I,  there  is  no 
<  twenty-four 
),  twenty-two 
of  seventeen 
ih."    Teni\>l('. 
sixteen  petty 
1,  and  also  of 
So  far  as  tlie 


(111  intiiilni'  ilo 
hiiitta  If  l-"),"'; 


(lUit. 


Kin;;. 

KiiiK  i'l 
(hiiis  s;i 
knivatli 
tl(>  cf  vaissciiu. 
l)i\  Caitc  Mtiis  Mi- 
ni aniviTciii 
Itiii'd  <l'i 

lirllli'. 

liiinl  i!!i 


*  M 
KiiiK 


t  .». 


li  It'll 
idri's 

I'.ll.  <■>,  l-.  (lU-)ilMi' 

Ic  Sliiiiainloiil''' 


tcrnu'  I 


i|lll|i:l'; 


hili'is, 


il  n 


ii>i'' 


latrt'olli"  i<"*="' 


It  cni  ircnli'ii'ii 
loiii  .Iffivlv-i'i' 
lnH-i»t>iiiiii<'>"*-  '1' 


Seji  Kiiifi  is  concerned  this  acconnt  is  eontirrneil  by  Sylvester's  attidavit. 
(Vol  vi.  Am.  App.,  j).  (1(K>.) 

The  next  a<Tount  of  this  event  is  contained  in  a  hook  called  the 
''Crtiise  of  the  Shenandoah,"  written  by  Hunt,  one  of  her  oHieers,  after 
Iter  cruise  was  linished,  and  published  in  London  and  in  New  York  in 
1SU7.  lie  .says  that  when  tliey  parted  from  the  liuurel, '•olVicers  and 
men  only  numbered  forty-two  soids,  less  than  half  her  rej^idar  comple- 
ment."   (Cruise  of  the  Shenandoah,  pa^ife  -1,  cited  intlu'  American  Case.) 

Temple's  detailed  account  as  corre«*ted  jiives  the  names  of  forty-three 
j)er.sons  on  i)oard.  There  is,  therefore,  almost  absolute  identity  of  re- 
«'()Ilection  of  three  in<lepen<lent  witnesses  on  this  point. 

We  have  two  acciuints  of  the  number  of  men  enlisted  between  the 
time  of  lea\  inji'  th(^  Laurel  and  the  arrival  of  the  ncsscI  at  >L.'lbouriie. 
which  are  thus  stat»'d  in  the  American  Case: 

'I'lii'  iiiitliorof  tlif  Criiisc  of  llic  Sli«Miaii<li>a1i  says  that  ri>iirl<'i'ii  wric  ciilisiril  in  this 
way :  ten  IVoni  thi-  Aliiia  aii<l  tlit-  ( ioiltVfy,  two  from  thr  Susan,  ami  I  wo  iVoiti  tiii-  Staccy. 

'I'iMiiph-,  hi  his  .illidavit,  uivis  the  iiaiiit's  of  tliriM-  from  thr  Aliiia,  livi-  from  thi>  Cml- 
ficy,  oiif  from  tin-  Susan,  two  from  tlic  Stat't-y,  and  otic  from  the  Kdwaid  ;  in  all  twclvt". 

Here,  ajjain,  the  trinin;^'  discrepancy  confirms  the  j>'eneral  truthfulness 
of  the  recollection  of  each  witness.  According:  to  Hunt's  account,  she 
liad,  on  arrivin;;"  in  Melbouuie,  lifty-live  men  all  told.  In  Temple's  alii- 
davit,  with  thcj  adilition  of  Sylvester,  we  have  the  names  of  fifty  four 
men,  viz,  twentytive  otlieers  and  thirty  men. 

Other  corroboratiiif*'  testimony  sustains  the  truth  of  tiie  statements. 
In  the  sixth  volume  of  the  American  Appen<lix  there  are  several  allida- 
vits  of  persons  who  left  tln^  ship  at  Melbourne.  IJrackett  (on  pafjji^  (»1.j) 
says,  "ilurin^-  the  whole  time  I  was  on  board,  out  of  about  thirty-tive. 
ntakinj;  the  crew  of  the  said  steamer,  there  was,"  »S:c.,  &c.  J  le  also  states 
that  lie,  and  four  others  named  by  him,  to  avoitl  punishment,  (consented 
to  serve  as  seamen  on  the  steamer.  l>olin,  (paf^e  tilo,)  Scandall,  (pajje 
(Mo,)  Fonl,  (pa«;e  (512,)  Scott,  (paj>e  OKi,)  Lindbiiry,  (page  (J17,)  Wicke, 


iiif'caiiioitMis-itoiiipii'is,  (|iii  (|iiitfrit>iit  lo  .Sea  Kin;;  dans  It'  iniino  lint.  Quant  an  St^i 
Kin;;,  i-o  <'oiniit<'  fst  conllrmt-  par  rtt^iV/ttrit  df  SylvfNttT  (vol.  ''.  Am.  .\pp.,  \.  (W). 

I'll  troisii-mi' it'cit.  ilt- ct'l  t'vi-nt'mfiit  sf  tiKiivf  tlans  mi  livif  iiititnli'- "('roisicit' dii 
Slifiiiiiidtiah  "  tM'i'it  par  lliiiit,  run  df  sfsttflit'ifrsapri-s  la  Ini  di;  sa  i'rt>isii'i-<>.  ft  piihlit-  a 
l.ttndrf s  f t  a  New  Vtok  fii  IHOT.  ]1  tht  niif  ltiist|irils  t|iiiltfrt'iit  It-  l.aiirfl,  il  n'y  avait 
I'll  lout  f n  fait  trollif it'rs  ct  tlf  niatf lots  tpif  (|naraiitf-ilfii\.  Iiommt's.  iiioiiis  ilt^  la  mtiitit- 
tlf  I't'tVi't'tif  ii';;iilifr  (( 'I'ttisit'i't'  tin  Slifiiamloali,  p.  •Jl,  fiti-  tlans  If  fas  aiiii>rifaiiO. 

Ijf  rt'cit  ilt'tailh-  df 'rfinplf  aiiisi  t'lnii^i'',  tloniit-  Ics  iidiiis  tlf  t|iiai'aiiti'-ti'tiis  )>frsoiiiifs 
Sf  troiivant  a  Itto'tl,  l.fs  soiivi'iiirs  df  Irois  ti'moins  imlt'pi'iiilants  stint  iloiif  siir  1 1- 
[itiiiit  pri'stpif  aliKiilnnifnt  iilfiitiipifs. 

Nolls  avttiis  dfiix  rapptirts  tpiaiit  an  ni>m1ii'f  ilfs  litminifs  iMiiult's  fiitii'  If  tlcpart  tin 
I.uiiffl  «'t  Tarrivt't'  dii  vaissfaii  a  Mt'll»tiiiriif  :  ils  st-  tiiMivtiil  fxpniiifs  ('iimiiif  suit 
iliiiis  Ic  cas  tlf  r.\mt''i'it{iit' ; 

"  J.'anffnr  tlf  la  CruisiiTf  dn  SIii'iihikIimIi  ilit  iiiif  tpiattn/f  liniiiiiifs  t'lirfiil  finnlis  th- 
hiniaiiif  I'f  snivatitf:  tlis  fiirfiit  tiiis  tie  i'Aliiia  ft  'In  (iodlri'V,  tlf  ii\  tU'  la  Siis:iii  ft 
iliiix  (In  Stai'fr. 

"'i'finplf  tlans  sttii  (ilfiihiril,  diiniif  Ifs  nonis  df  tmis  homint's  tirt's  tit-  TAIina,  df  tini| 
ilii  (iodlVf.N,  d'nn  df  la  Susan,  iU'  dcnv  tin  Sfactr.  ft  irnii  iW  rr.ilnnattl,  t'li  tinit  dim/f." 

Ifi  t'lii'tti'f,  la  pftitf  ditVt'ifiiff  foiitiriiif  I'f  xactitiitif  ties  smivi'iiirs  dt-  iliaiiiif  ti'iiitiin 

St'ltin  lliint,  If  Siifnanditali  a\ait  fii  anivant  a  MfUmiirnf.  .">.'i  huninifs  ttnil  foiiipri-. 
Ihiiis  ratlidavit  tlf  'rt'iiiplf,  fii  ajiintant  Sil\i',>tfr.  iitnis  trmiviMis  Its  llt»m•^  dc  .">."i 
litMiinifN,  sitit  '17>  (itlifcis  ('(  no  htimnifs. 

O'antri's  tt'iiit»i;;iia;;fs  fiirniliorant  ff  iix-f  i,  di'iiiniitrfnt  la  vt  ritt'  tlf  i  f s  the lar.ilioiis. 
Kaiis  If   ti'  Ntilniiif   (If  Tappfiitliff  amt'iifain.  sr   trtniM'iil    jiliisifiirs  (ij/ii/d/'i/.'*  th-  pfi'- 


stiiiiifs  t|iii   tint   tinitti 


If    vaissfaii   ,1 


Mf  Hionnii 


Hiat'kfll     p.  til.'.)  till  :  "  I'fiitlant 


trtiis  iiiai' 


(H    ttiiit  If   tfinps  i|iif.j'ai   ]iassi'  a  Imrtl  tin  vaissfaii,  ilfs  '.{.">  hniniin's  fin  irno  rom|i'Mant 

l'tt|iiipiiyf  till  tlif  xapi'iir,  il  y   in  ait,  ftc.ftf."     II  dt'flai'f  aiissi,  tpi'avff  tpiatrf  fama- 

niilis  limit  il  ilttniif  h-s  nnms,  ils  eonsfiitirfnt,  ptnir  f  s  itf  r  il'i'tif  |Minis,  a  sfr\  ir  foinmc 

Idl^t'B    ""'•«l'»t«  siir  If  iiavii-f.     l?olin  (|i.  til.'i),  Fonl  (p.  lip'),  Scandall  (p.  (»l.''i),  Scott  (p.  lilt'O, 


536 


SUPPLEMKNTARV  ARGIMENT.S  AND  STATEMKNTs. 


'>'! 


(psigp  C'J.I,)  ami  IJcliiecke,  (imge  0-MJ,)  say  the  siiiiie  tiling;  in  all  twolvc 
persoiiH.  Two  of  the  names  mentioned  by  IJiaekett  are  on  Teinph-'s  list 
of  enlisted  men.  Adding  ten  to  Temple's  list,  it  makes  i'l/ity,  or  fi\(> 
more  than  the  nnmber  given  by  lirackett  as  "  about*'  the  crew.  Adding 
it  to  Hunt's  list  it  gives  foityonr. 

An  estimate  derived  in  a  roundabout  way  from  the  United  States 
Consul  at  Uio  de  Janeiro,  from  the  aceounts  of  masters  of  vessels  eap 
tured  by  the  Shenandoah,  wlio  had  reached  there  on  their  way  home. 
coMtirms  the  truth  of  these  tigures.  Jle  says:  "The  following  stale 
me^it  in  regard  to  the  Shenandoah  is  made  by  ship-nuisiers  who  have 
been  prisoners  on  board  of  her.  •  •  •  fc^ii,,  iias  forty  three  men, 
uearly  all  ICnglish,  besitles  the  oHicers."  These  statements  were  made 
to  (consul  Munro  by  [)ersons  who  left  the  Shenandoah  alter  she  had 
received  the  additions  made  to  lier  crew  before  arriving  at  Melbourne. 

We  arejustitied  in  assuming  that  Hunt's  and  Temple's  accounts  rep 
resent  the  number  of  men  she  had  on  board  on  arriving  in  Meli>Mnrne. 

The  next  impiiry  is  how  many  did  she  lose  there. 

roliceOttlcer  Kennedy,  of  Melbourne,  in  his  report  dated  rebruarv 
l.'i  states  that ''  twenty  men  have  been  discharged  from  the  Shenaudoali 
.since  arrival  at  this  port.    (Brit.  App.,  vol.  5,  j).  108.) 

Temple  gives  us  the  luimes  of  two  who  were  discharged,  Williams  and 
Jtruce,  and  says,  in  addition,  "  there  were  sonu;  uumi  who  left  the  ship 
at  IMelbourne,  whose  names  1  do  not  know.''  Sylvester  says  that  he  left 
at  Melbourne.  (Am.  App.,  vol.  G,  p.  GOO.)  Hrackett  gives  us  the  mimes 
of  himself,  Madden,  ami  Flood,  three  in  all.  ISolin,  Scandall,  Scoti, 
Landberg,  Wicke,  and  Berucke  make  twelve,  it  appears  by  the  alii 
davit  of  Bruce  (Am.  App.,  vol.  (>,  j).  CO."))  and  of  Colby  (same,  p.  (107) 
that  they  also  worked  on  the  vessel  as  part  of  the  crew,  and  left  at 
Melbourne.  Thus  it  appears  that  out  of  the  twenty  thirteen  were  pris 
oners  who  had  been  captured  and  forced  to  serve  on  the  Shenaudoali, 
and  who  seized  the  first  opportunity  to  leave  the  compulsory  service. 


LaiidluT^  (l».  fil7),  Wicke  (p.  ('2^t),  t>t  Ik'ruckc  (p.  •5'20),  dis«Mit  la  nl^IIu^  «'luwt',  soit  en 
toiil  <!  Mi/t;  |ii'rm)iiiifH.  DtMix  <1»4  nuius  iiuMitioiiiii's  par  Hiacki^tt  Ht-  troiivcnt  siir  In 
IihU  <!<■ 'IViiiplo.  Kii  ajoiitant  .lix  noiiis  a  la  liste  il«>  Tt-iiiplt;  nous  nvoiis  40,  it'cNt-ii- 
tlirt-  <'iiM|  ilv  pliiH  (|iii^  lu  noiiihri'  «l<)iiii<'>  par  lirackett  coiiiint^  ciniiposaMt  a  ixh  pii" 
rr>i|iiipa);i-.  Kii  rajoiitaiit  a  'a  liHt*^  iUi  II. ml,  nous  avuiiH  41,  i|iii  fst  If  (■liiiViv  appiox 
iniatit'iloiMii'  par  !<■  ctMisiil  iIon  r.tat.s-l'iiiH  a  Kio  .laiitii'd,  d'apics  li-s  rociU  ties  inailrts 
(l«<  \ai^Mriuix  pris  ]iar  li>  Sliciiaiiiloali,  qui,  en  ciitriiiit  cite/  v\\\,  avaiciit  |ias.-«-  |iar  ctttr 
vill«'.  I.(<  ('oiisiil  (lir ;  "  l.i>  rocif  Niiivant  i|iiant  an  Slifiiaiidnali  a  etc  fait  par  iIch  iiiiii 
tn'.s  (Ic  vaiNMfaiiv  i|iii  onl  (•(('•  prisoniiii-i'.s  a  bord  de  ce  vaisst-aii  *  *  II  a  4'.\  lioiiinu's. 
pr«-M|iie  tdiiH  :iii;r|ai.H,  untie  les  ollleieiH."  ('e.>  rt'eits  tiireiit  doniies  an  eoiiHnl  Miinid 
parties  (lersonnes  i\ni  avaieiit  <|nitt<'-  le  Slienaiidtiali,  aprrs  ijii'll  eiit  an<;nient(' m>ii 
«M|ni)»a;;e,  avant  d'ai  river  a  MellMniiiie. 

\i)ii>  ponvdiis  par  eonst'iinent  siippuser  i|ne  les  eliilVres  iiulii|n<'s  par  limit  el  'reni))li 
represeiiiiul  le  iioiiilire  des  luiiniiies  (|in'  It!  vaissean  avail  a  l»onl  en  aiiiviinl  .1  Mil 
tioiiriie. 

('lierelu)iis  iiiaiiitenaiit  a  ^;l\(»ir  ediiiliieii  il  en  |>eidit  danscette  ville. 

I.'t'itieier  de  jKiliif.  KeiiiK  d,v  de  MellMiiii  ne.  dans  smi  rappiirt  dn  \'.\  tV-viier,  dei'liur 
ipi'  vinyl  lionnnes  mil  ete  ren\  oyes  dn  Slu-nandoaii  dipni.i  son  arrivee  <lans  le  porl. 
^Itrit.  App.,  vol.  .'),  p.  I(IH.  I 

Teiiiplt  nous  doiiiie  les  ni)ni>  de  den\  lioniiiies  i|iii  fnrenl  renvo\  cis,  Williams  d 
Hriiet' :  it  11  ajiiiit":  "<iineli|nes  lioninies  <|nittere:it  le  vaisMean  a  Mellionnie,  iii;ii> 
.j'ieinMe  leiirs  iKinis."  Sil\  c^ter  dit  i|M'il  iiiiitla  le  vaissi'an  a  M»-Ihoiirne  (  Viii.  App.,  mh 
(>,  p.  li'i'.'. )  IJraekel  nmis  doiiiie  a\ee  son  iioin  cenx  de  Madden  et  de  I'lood,  trois  eii 
toil  I ;  llolin,  Scandall,  SiotI,  Kainlltt'i^j.  Wiektj  el  Hi  riiike  Jonl  doiL/>;.  II  iiar.ul, 
d'aiiies  les  (qfidiirilH  de  Mnne  ( .Vnt.  App.,  vol.  (!.  p.  7]4Kt)  et  de  ('(dhy  ( id.,  p.  t><*7).  iiu'eus 
aiissi  tra\aiilerent  a  hord  dn  vaissean  roniiiie  ineinlireH  de  I'l'ipiipax*'  et  le  i|iiitt('i'eiit  ;i 
Mell)iini'ne.  Ainwi  il  parait  .pie  des  viii^t  liomnies,  treue  i-tjiit-nt  des  prisonnlers  i|iii 
axaiei't  ete  olditri^s  ile  tra\  ailler  et  de  s»t\  ir  wiir  le  S|nMiaiid<*ti,  jioiir  I'-v  iter  niie  piiin- 
tiou  et  (pi'lls  Hui.sireut  la  premiere  oeeaiioii  de  ipiitter  ee  mmv  lee  t'orei'. 


'J 


AMKRICAN    AKGUMKNT — .SIIENANDOAIF. 


.537 


iill  twt'lv*' 
'inj»U?'s  list 
•ty,  or  live 
v.    Ailtlinp; 

tiHl  Stati's 
t'sstils  cup- 
wsiy  lioiiu', 

s  who  have 
•three  iiioii. 
were  inuth' 
er  she  ha«l 
klelbonrne. 
fcountH  rep 
MeU)ouriie. 

■d  Febrnarv 
Sheiiauiloali 

Villianis  ami 
eft  the  siiip 
8  that  he  h'lt 
us  the  names 
lUilall,  Scott, 
i  by  tlie  atli 
janie,  p.  <»U*) 
,  and  left  at 
en  were  pris 
Shenandoali, 
ry  service. 


\\i\  choMfi,  soit  I'll 
trouvout  wiir  l:i 

V4M1S  -10,  c'i'Nt-il 

l)siin»  n  ;»(■!(  }»('■ 
cliiiViv  ai»t»<)\ 
its  tits  iiiiiiliis 
pasMO  piir  •'•'•''■ 

liiit  j»ui'  <l«'«  '""' 
II  ii  4:1  lu)iiuiit>. 
11  i-oiiHul  Miiuid 
t  aii^jiiu'utt'  Mill 

lllnnl  ft  TtMiivl' 
l:miv;ml   ;i  M' ' 


t'cVliiT.  <1(  <l:il' 

Lt  dans  If  port. 

l-.s,  Williams  ct 

llclliniinic,    laab 

l(\ii>.  .\1>1'-.  ^"' 

Ihidd,  trnis  til 

|ay«.      11    I'aiMit, 

,,.  t,(l7),  iiu'ciix 

|t  !.'  tpiitti-niit  :i 

prisonnifis  M'" 


We  have  no  ni(>aiis  of  positively  kiiowin<;  the  circuinstames  under 
which  the  others  eidisted;  bnt  from  the  identity  of  result  which  will 
iiereafter  a|>pear  as  derived  from  several  independent  sources,  we  think 
that  they  were  not  amonj;"  the  persons  either  referred  to  by  Hunt  or 
named  by  Temple  as  anion;;  the  permanent  crew  of  the  vessel  when  she 
arrived  in  Melbourne,  bnt  were,  like  the  thirteen  whose  names  we  can 
<;ive,  prisoners  who  had  been  forced  into  an  unwilling  service. 

We  feel  perfectly  convin<'ed  that,  exce|>t  Sylvester,  no  person  was  dis- 
charged from  the  Khenandoah  at  IMellH>uriie  except  persons  enlisted 
trom  captured  vessels  of  the  United  Stat«'s  against  their  own  will. 

We  next  direct  our  inquiries  to  the  niunbcr  of  eidistments  made  at 
Melbourne. 

(Jn  the  L'Ttli  of  Febrtiary,  ]S(m,  which  was  about  a  week  after  the 
Shenandoah  left  Melbonrne,  and  when  the  facts  were  tresh  in  his  niintl, 
(Governor  Sir  Charles  J)arlin^  said  that  the  reports  and  statements  anil 
li'tters  from  the  chief  commissioner  of  police  in  Victoria  left  "no  doubt 
that  the  neutrality  had  been  Jiatjranthj  violated  by  the  commandtM*  of 
the  Shenandoah,"  who  had  •  •  *  received  on  board  of  his  vessel, 
liefore  he  left  the  port  on  the  18th  instant,  a  <M>iisid<M'able  nundier  of 
men  <lestine«l  to  augment  the  shi|)'s  company.     (IJrit.  App.,  vol.  i,  p. 

The  report  which  is  referred  to  in  this  statement  is  probably  the  one 
t'oiind  on  page  117  of  vol.  r>,  of  the  JWitish  Appendix.  In  this  report 
the  detective  states  that  live  boatlomls  of  recruited  men  were  seen  to 
go  on  board  the  Shenandoah  on  the  night  of  the  17th,  one  of  which  had 
ten  or  twelve  men  in  it,  of  w  liom  two  returned  ;  a::d  that  seven  men 
had  gone  on  board  on  the  morning  of  the  ISth.  He  concludes  thus  : 
*Mii  preparing  this  report  the  detective  has  contined  himself  to  facets;  bnt 
it  is  stated  that  in  all  between  sixty  and  seventy  hands  were  shipped  at 
tins  port." 

The  "  facts  "  stated  by  the  detective  were  true,  and  are  supported  by 
other  proof.    The  rumors  to  which  he  referred  were  e\aggerate«l. 


NoiiH  u'livoiiH  HiicMii  iiioyt-ii  (In  Havoir  ]tnMitivi>iiioiit  daiiH  qii«>lli>H  rirri>iistanci*s  Ics 
antics  H'«'iuV>lfHMit ;  inais  d'apri-s  Ics  n'sultats  idi'iitiiiiu's,  tt-ls  i|ii'ils  tlirivfiit  di-  plii- 
>i('tirs  s«>iirccN  iiitl<>|)i'ii(lantcH,  t'oiiiinc  imiiis  If  vitioiis  (dii.s  has,  nous  iiovoii.s  ijiTils  in- 
rui.saiiint  pas  partic  dc  cimix  itidi(|.ii'n  par  lliiiil  oii  par  1'cinpl*t  r(Hiiiii<>  rotiipiisaiit 
i'i''i|iiipa};<'  pniiiaiiiMit  dn  vaisscaii  loisiin'il  anivaa  MollMniriii',  iiiais  I'tairiil,  fDiiiini- 
ii's  XVi'Vf.i'  ditiit  nous  ponviiiis  doniirr  Ics  iioms,  drs  pi'iHonnicrs  ipii  w  airiit  I'lc  t'orrrs  tit- 
lairc  IT  .service  contrc  Icni'  ^rc. 

.Nulls  souiiiics  pai't'aitciiiciit  coii\  aiiicii>.  ((iTa  part  Silvester,  ]ii'r>i>nne  lie  t'lit  ieiivu\e 
111  Slieiiaiidoali.  a  .Mcllioiiriic,  <'\ccpti'  des  Ikumiiics  eiiriiles  cmitre  Iciir  ;:i<'  dans  des 
wiis-scaiix  capiiiri's. 

.Nous  <liri;;eroiis  inaiiiteiiaiit  iios  reclierclics  >iir  Ic  iioinlire  dcseiiiiilciiieiits  tails  a  Mel- 

'llllllC. 

I.e 'JT  tV'viier  IHCc'i,  mic  seiiiaiiie  einiroii  a|ire«.  le  depart  dn  Slieiiamlnali  de  Mel- 
''•iiinic,  et  alors  ipie  sa  iiieinoirc  «'lail  eiK-ore  traiclie.  le  ^oin  einetir  >ir  Cliaries  |)arliii); 
liiijara  ((lie  les  rapports  et  Icttres  dil  coiiiiiiisMaire  cliel'  de  polici-  a  "  Xietotia  lie  lais- 
■iiriit  aiieiiii  iloiitc  ((lie  la  iiciUralite  cut  I'te  \  iolei'  d'niie  iniiiierr  lla;;raiite  par  lecoiii- 
iiiaiidaiit  till  Shciiandoali  ipii  *  **  a\ait  ri'i.ii  a  Imid  de  sun  \  aissiaii  a\'aiit  deipiitler 
I'- iMUl  le  I-  111!  iioiiilire  coiisideralde  d'lioinines  desi ines  a  aiii;iiieiiier  son  ei|iiipaf;e.'' 

I'll  it.  .\|»p..  vol.  I.  p.  .">(>.").) 
I.e  ra|ipi>rt  dont  il  est  ici  <;iicstioii,  est  prolialdeineiit  lelui  ({h     I'oii  troiivr  a  la  |>aK<> 

IT  dn  voliiiiie  .">  de  ra|i|)ciidicc  liritaiiiiii|iii-.  I)ans  ce  ra)ipoit,  h-  thtirlin  declaif 
■iii'ciii(|  liateanx  reinplis  d'hoiiiincs  out  i'to  .  iis  se  diri;;caiit  .siir  le  Slieiiaiidoali  pen. 
'Uiit  la  unit  till  17:  I'liii  tl'eiiv  avail  a  liord  di\  a  doii/e  lioinines,  dont  deux  seals  n-- 
vinniil,  et  (pie  sept  lioniiiies  s'l'taieiit  enilianiiK's  Ic  IH  an  matin.  II  ferniiiie  uiiisi 
sill  rapport  :  "  Kii  preparant  cc  rajiport,  le  f/(7('r//i'('  s'est  lioriK-  aux    tails;  inais  I'ou 

lit  i|ireii  tout  .soixaiitc  a  soixantc-di.v  liormiics  sc  soiit  eniUanpies  siir  <;e  vaissenii, 
I  'l;iiis  ce  port." 

Les  tails  citt's  par  le  dilrrliir  Ho?it  vrnis  ct  corroliorcs  par  d'autros  prciives.  Lch 
''iiiits  dont  il  parlait  1  taieiit  ifxa^t'it's. 


Fr^H 


SI  rri.KMKXTARY    AKOl'MENTS    AND    STATEMENTS. 


V  ■  I 


The  author  of  the  "  Cruise  of  the  SheiisuHloali  "  sa.vs  that  '*  the  sliips 
t-'oinimny  had  re(?eive(l  a  mysterious  athliliou  ot  forty-tive  men."  (Cinisc 
of  the  Shenandoah,  jj.  11. {,  referred  to  in  the  Ameriean  Case.)  This 
would  seem  to  he  about  the  nundter  seen  by  tlie  deteetive's  inloi  tiiants. 

Temple  jj:ives  the  names  of  thirt<'en  petty  otHcers,  nineteen  stMiiun. 
seven  tirenien,  and  thre*;  marines;  in  all,  of  forty-two  persons  who  were 
reeruited  at  Melbourne.  This  aceount  ajjrees  nearly  with  Hunt's,  iiml  is 
ineidentally  conlirnu'd  by  Forbes' atlidavit  coneernin;^  Uunuin*;,  Hv;iiis. 
and  (Jreen,  referred  to  in  the  American  Case. 

Aceordin;;  to  the    fi;ijures  to   l»e   ^fathered   from  Hunt's  narnitiVr,  in 
various  jiarts  of  it,  the  Shenandoah    then  had,  after  the  Mclbounic  ic 
eruitments  were  added,  one  liuiulred  and  one  ollicers  and  men.  AccokI 
iuff  to  Temple's aircount,  she  liati  twenty-tive  ollicers,  thirty  petty  olVircis, 
twenty  six  seanuMi,  nine  firemen  and  tiiree  marines;  in  all,  ninetytliicc 
persons. 

The  sli;;lit  diserepaney  may  b«'  aceounted  for  by  the  fact  that  Hunt,  in 
his  rapid  nairative,  makes  no  nu'Ution  td"  the  discinn j^e  of  men  at  .Mel 
bourne. 

On  the  l*7th  of  May,  the  Shenandoah  captured  and  burned  the  wiialt  r 
Abijjail.  Mr.  Kl>enez«'r  F.  Nye,  the  master  of  the  Abi;;ail,  in  an  alii 
davit  sworn  to  on  the  7th  of  September,  1S71,  says:  '•  The  Shenauiloali 
at  the  time  I  was  taken  on  board  had  a  fidl  complement  of  ollicers,  bin 
was  very  much  in  want  of  seamen,  havinjij  only  forty-live  or  fifty,  not 
half  the  number  she  needed.  The  ollicers  told  nu>  that  her  full  coniple 
ment  of  oflieers  and  crew  was  one  hundred  and  eijjhty-live,  but  at  tliat 
time  she  had  one  hundred  and  live  all  told.'' 

It  appears  from  T<Mn pie's  atlidavit  that  after  lea vin;»'  ^felbonnie  aiul 
before  the  capture  of  the  Abiy:ail,  the  erew  was  increased  by  the  enlist 
nu'nt  of  one  petty  olticer  and  sevi'u  seamen  from  captured  vessels,  viz: 
I'ark,  ollicer,  and  Wehdi,  .Morris,  Adeis,  l)elond>az,  Ho«lerick,  Steven 
son,  ant!  ]{ossel,  seamen.  Accordinj;  to  the  (^dcidations  derived  from 
Hunt's  narrative,  therefore,  she  should  have  had  at  that  time,  with  this 
addition,  1U<S  persons,  ollicers  an<l  crew. 


js4  I. 


1/iiiit(>ur  lie  la  irosiiro  «lii  8li<-ii!iii<1oah  dit  <|in»  "  lV(|iiii»a;;«'  avait  rt'vu  niic  au;;- 
nieiitation  iiiystt'riisu.s*-  <l«'  qiiaraiite-ciini  Iioiiiiiii'h,"'  (p.  li;{,  voy.  Aiiurieaii  I'atf).  Ci- 
iioiiiliro  Hfiiililu  t'tic  ccliii  <|iii  tut  leinannu-  par  coiix  qui  UoiuiiTuiit  ces  illf^u•lllatioll^ 
an  (MtvUn. 

T«Miiplt^  (loiiiie  los  nniiis  (\v  1  olliricr.  l'.\  otliciors  siibaltenu'H,  lU  niati-lots,  7  inocaiii- 
<'i<'iis-pi>iiipit'rs  i-t  :t  soliiats  (Ic  inariiif,  fii  tout  V.\  Iioniine.s  rt'ciriitOH  a  McllMHinic.  Ci- 
n'-cit  s'acronlt'  asse/.  a  vet-  cfliii  ilt-  Hunt  ft  m'  troiiv*^  inridt-iniiu'iit  rtinliniH-  par  Vufi- 
ilarit  iKi  Forln-s  an  snjet  <\v  iMinninji,  Kvans  ft  (iiffii  fitos  dans  If  cas  df  l'Anifiit|nf. 

Sflon  Ifs  fliitlVfs  (|nf  Ton  piMit  n-f nfillrr  <lii  rt'-cit  df  Hunt,  dans  ditl'i-i'fntfs  piirtii'^ 
df  cf  rofit.  If  .Slifhanilitali  avait  alnrs,  a[»rf>!  Ifs  eniulfiuf uts  a  Mflliouiiu-,  101  otliciii" 
ft  niatflots. 

Sflon  If  K'fit  df  Tfuiplf.  il  avait  '!'>  oliiricis.  ;i()  oHii'lfrs  Mnhaltfiiifs.  "id  niatfluts. ',' 
ft  :t  soldat.s  (if  inarinf.  <■  n  tout  'X\  lioniiucs. 

I>a  ]»ftit«;  dilloifnif  jifut  s'fxplii|nfr  par  If  lait  <|Uf  Hunt,  dans  son  ivrit  laiiidc  iir 
fait  aufuin;  nuMition  dii  I'fiivoi  dfs  lioniiufs  a  Mfllionrn*-. 

Lf  '27  niai.  If  Slifuandoaii  jtrit  ft  Inula  If  lialc inif r  Aliijiail.  M.  EhfUfzor  1'.  Nyf. 
If  niaiti'f  df  lAln^aTl,  dans  nn  «7/i(/((r(7  dn  7  sfptfinlnf  1"'71  dit :  "  Lf  Slifnaiidi>;ili,  i 
I'fpotlUf  oil  Jf  fii.s  pris  a  iHird,  avait  nn  nonilu'i-  coniplft  d'otlicicrs  niais  niamiiia:! 
[)as.salilfnifiit  df  niatflots.  tai-  il  n'fU  avail  ipif  «iiiaranlf  on  tiniiuantf.  pas  la  nioitu  ilc 
CO  <|n'il  t'allait.  lifs  oHirifis  ni'ont  dit  i|nf  Ifur  vi'-iitablf  ftlfftif  <rotli(ifrs  ft  <1 
niatflots  aniait  dn  ftiv  df  IS"),  inais  a  ffttf  fpo(|ne,  il  avait,  tout  coiiipiis,  li'> 
lioiniiifs.''  I 

II  parait,  d'aiiris  r((/?((/((n7  ilo  Tfiiiiilf.  qn'apifs  avoir  <|uitt('  Mclbonriif,  ft  avatit  l;ii 
oajitnif  df  rAlii;;aii,  I'lMiiiipaK*'  tut  an;fnif  nt(''  par  !"«■  iiiliauf  liage  <rmi  otticii-r  siilialtiTiu' 
ft  df  sfpt  niatflots  tiifs  de  vaissfanx  faptun  s,  soit  :  I'ark,  otticier,  et  Wflch,  Morris, 
Adfis,  Dfloinlia/..  Kodt-rifk,  StfVfiison  ft  Kossol,  niatflots. 

D'apifs  Ifs  calenJs  iirfs(iii  n'cit  df  Hunt,  If  Slifiiaiidoali  devait  par  consequent  avoivj 
a  cctte  fpoque,  avt.'i-  cette  anji;iin'iitatioii,  liH  lioinnus  tout  coiupris. 


~ 


AMERICAN    ARGIMKNT SHENANDOAH. 


5I>3 


•JCi  ni;iti'lt>ts, ; 


i)Ut   eoiiil»ii> 


•  consequent  avoii 


Acconliii};  to  Temple's  account  alie  luul  one  liundred  jiiul  one  such 
persons,  of  whom  JUty-seven  were  ofliiiers  and  petty  otllcers,  and  forty- 
tour  were  either  seamen,  marines,  or  firemen.  This  result  coulirms  the 
accuracy  of  Mr.  Nye's  estimates  ami  recollection  in  a  striking;  manner. 

After  that  time.  Temple  n'presents  the  iSenandoah  as  receivin<;f  re- 
cruitments from  captured  vessels,  as  follows:  one  otilcer,  twenty-one 
seamen,  one  fireman,  and  nine  marines:  in  all,  thirty-two  peisons.  He 
represents  the  vessel  as  arrivinjj  at  Liverpool  with  one  hundred  au«l 
tiiirty  three  persons  on  hoard. 

in  an  otticial  report  made  hy  (,'ai>taiu  I'aynter  to  the  rontroller-Geii- 
(lalofthe  IJritish  Coast  (luard,  dated  Novend)er  7,  1S<m,  (l{,it.  App 
\(»1.  1,  paj^e  <M.j,)  it  is  stated  that  "the  Shenandoah  has  a  eomidemeiit- 
of  one  liundred  and  thirty-three  olliiiers  and  men." 

Temple,  in  his  aflidavit  sworn  to  the  <»th  day  of  the  following  Decem- 
ber, {jives  the  identi(!al  numlu'r,  and  adds  tlui  names  of  the  «»th('»'rs  and 
men.  When  this  aflidavit  wascommunicatetl  tothc  Ilritish  (lovernmeiit 
nil  attempt  was  made  to  impeach  his  veracity  l»y  efftuts  to  show  that 
Ills  jjeneral  character  did  not  entitle  his  statement  to  credit ;  hut  no  at- 
t(Miipt  was  made  to  show  that  the  list  attacrhed  to  his  aflidavit  was  in 
liny  respect  incoiTe(!t,  undoubtedly  because  the  persons  in  Liverpool  who 
knew  the  facts  knew  it  t(»  be  true.  The  attempt  was  made  by  Captain 
I'iiynter,  the  otii(!er  who  took  charfje  of  the  Shenandoah  sifter  she  was 
ahamloned  by  Waddell,  and  under  whose  directi«ni  the  crew  was  dis- 
cliarfjed.  lie  therefore  either  knew  whether  the  facts  were  correct,  o\\ 
if  they  were  incorrect,  where  the  persons  could  be  found  who  could  show 
that  they  were  so.  In  discharjfinj;  the  crew  he  undoubtedly  had  the 
crew  list.  If  Temple's  list  had  varied  from  the  ship's  crew  list,  it  is  cer- 
tain that  such  variance  would  have  been  shown  liy  an  oflicer  anxious  to 
prove  him  unworthy  of  credit. 

Temple's  list  is  supjwrted,  1st.  By  its  intrinsic  truthfulness.  L'd.  IJy 
ita  substantial  agreement  with  Hunt's  account.  'M\.  Hy  the  shipnms- 
ter's  statements  reported  to  Consul  Munro,  at  Kio  Janeiro.     4th.  liy  the 


li'apri'S  le  rocit  de  Temple,  il  avait  101  liomines,  «lont  etaioiit  57  officiors  et  offlciers 
<utialt»'iii«'8,  et  44  imitelotH,  ,s()l<lat8  de  marine  et  meeanicieiis. 

Ce  r<?8uUat  eonlirmc  I'exaetitiule  tie  {'estimation  et  les  souvenirs  lie  M.  Nye  de  la  ma- 
iiitre  la  plus  frappaute. 

Apres  eettc  epoquo,  Temple  ie])iesente  le  Slienamloah  comme  recevaiit  «les  eniole- 
inentstles  vaisseaux  eaptuves  eonnne  suit :  1  ollitier,  '21  malelots,  1  UH'caiiieien-iMMnpier, 
it  !l  soldat.s  de  marine,  en  t(»ut  '.\2  homnies.  11  represeiite  le  vaisseaii  arrivant  a  I Jver- 
pool  avec  I'Xi  liomuiesa  hord. 

Dans  uu  rapport  oHieiel  eerit  par  le  (■a])itaine  I'aynter  au  coiitroleur  y;i'in''ral  des 
^aiiles-cAtes  l»ritaiini(iues,  dale  dn  7  noveinhrc!  IHI,')  (Mrit.  App.  vol.  1,  p.  ()7r))  il  est  ile- 
iliue  "(pie  It?  SlwMiandoali  a  nii  etlectif  ilc  i;{:?  (illicieis  et  matrjots." 

Temjiie,  dans  son  «//iV/rtri<  du  0  deceuihrt;  suivant,  dnmn!  ties  cliillVis  ideiitiques  et 
ajiiiite  les  noms  des  ollieiers  et  des  niatelots. 

l.ors(|iie  Voffiduril  de  Temple  I'nt  t'onimunii|ue  au  nouvcrneiiiiMit  l)ritamiit|iie.  on  cliev- 
iliii  a  mettre  i-n  doute  sa  vt^racite  en  montrant  <|Uu  son  (  araeli  i<'  n'iiispirail  pas  dt;  la 
I'onllanee  dans  ses  declarations  :  mais  on  ne  eliei't-lia  nulleinent  a  montrer  (pie  la  liste 
iniicxe  a  son  nffidarit  etait  iueorreet  : — sans  ddutc;  jtane  que  les  i»ersoiMies  a  Liverpool 
fii  eouuaissaieut  les  I'aits  savaient  (pn<  eette  liste  ('-tait  \  raie.  Celui  qui  t''le\a  ees 
'iontes,  tut  1(!  eapitaine  I'aynter,  I'ollieier  qui  se  eliarj^ea  du  Slunandoah  lorsquil  tut 
iliandoune  j)ar  Waddell  et  eonformement  aux  inslruetious  duquel  I'l-quiifaijo  tut 
it'iivoy*'.  II  savait  par  eonseq\u'nt  si  ees  laits  etaient  exacts: — ou  s'ils  ne  I'etaicut  pas, 
ilsavait  ofi  on  pouvait  trcniver  les  jtersonues  qui  pouvaieiit  deuiontrer  lenr  inexae- 
iiti\de.  lOu  reuvoyant  requii)a};e,  il  avait  sans  doute  teuu  la  listo  dt^  IV'MiuipaKc.  Si  la 
iistede  Temple  avait  ditldre  de  celle  la,  il  est  evident  que  cett<Mlillereiice  aurait  «'te 
'li'iiioutr(^e  i)ar  uu  odicier  «lesireux  de  faire  jtasser  'I'emple  counue  iudii;;u(f  de  t'oi. 

La  liste  donnt'-e  par  Temple  est  appuyee  :  1",  par  sa  veraeite  iiitriusi'fpie  ;  2",  jiar  sou 
iiccord  avec  le  n-cit  de  Hunt;  II",  par  les  recits  des  nni'itres  des  vaisseaux  eai)tures, 
n  cits  rapport«'s  par  le  consul  Munro  a  llio  .laueiro;  4",  par  les  oJ}i(((iritn  <le  plusieurs 


540 


sri'PLEMKNTARY    ARGl'MKNT.S    AND    STATEMENTS. 


I, 


aftidavitH  of  several  captured  Heamoii  roleaHed  at  Molbourno  from  invol 
uiitary  serviee  on  tlie  Hlienaiidoali.  iith.  liy  the  letter  of  the  (i«)vt'rii(n, 
Kir  Charles  I )arliiii;.  (»th.  IJy  the  report  of  Detective  Kennedy.  7lh. 
IJy  theani(hivit  of  Forhes.  Sth.  IJy  the  aflithivit  of  Nye,  the  coinmaiMh'i 
of  the  Abagail.  Oth.  By  the  report  of  Captain  Paynter  to  the  controllci  • 
general  of  tlie  coast  guard.  lOth.  Jty  the  fact  that  Captain  Payntei 
was  not  able  to  disprove  it  wlieu  he  had  tlie  motive  to  do  so,  and 
when  tlie  means  were  within  his  power.  If  this  ac(;ount  is  to  be 
believed,  f«)rtytliree  pe/sons  recruited  at  Melbourne,  in  violation  of  tin- 
duties  of  (ireat  Itritain  as  a  neutral,  Joined  the  iShenan<h)ah,  namely, 
one  otllcer,  thirteen  petty  otlicers,  nineteen  seamen,  seventy-live  nu'ii. 
and  three  marines  from  that  port,  and,  with  one  exception,  no  person 
left  it  there  who  had  not  been  tirst  captured  as  a  prisoner,  and  then  coin 
pelled  under  <luress  to  do  involuntary  service  on  board. 

The  figures  in  this  paper  are  the  result  of  a  critical  examiiuition  ot 
the  documents  referred  to.     Where  they  ditfer  from  those  hitherto  pn* 
sented,  they  are  to  be  taken  as  a  revision  of  our  former  d(»<'uments. 

(lENEVA,  AvffUHt  21,  1872. 


Analysiti  of  the  lint  avcompuHyinf)  the  nlfiilarit  of  William  A.  Temple. 

Came  out  in  the  Laurel — 22  ollicprs:  Waildcll,  (jiriiiiliiill,  Loe,  C'lmn,  .Sciilt^N,  Liiiiii);. 
MolJlty,  O'ltriuii,  Cotld,  Mc(>iitt'ii«'.v,  liiilloi-k,  lirowii,  Miimoii,  Hunt,  Minor,  C'olton, 
Smith,  Howanl,  (Juy,  Lyncih,  O'iSlu'ii,  Alcotf ;  10  petty  ortieorH  :  Morun,  Wiirrcn,  Hroii- 
nun.  Hall,  Crawfonl,  WifjginH,  F<;nn«*r,  Grittith,  Fox,  JoncH  ;  2  tireuien  :  MurHliall,  llnw- 
linHon  ;  :{  Nt*auien  :  Siinptton,  Rone,  Oar — :{7. 

Came  out  in  the  Sea  King — 2  officers :  Whittle,  Hutchinson  ;  1  seaman  :  .Tones ;  2  lin-- 
mcn  :  Martin,  Clark — 5. 

Knliated  from  captures  made  before  arriring  at  Melbourne — 9  potty  ofHoors:  Rowe,  Riiy- 
mond,  VV»rt,  Duw,  Hanson,  Taft,  Hopkins,  VVillianis,  Jtnice ;  :)  seainon  :  Wav. 
Blacking,  Fl(»y«l— 12. 

IHHchurged  at  Melbourne — 2  petty  oOlcors :  Williams,  Bruce — 2. 

JCnlinted  at  Melbourne — I  officer :  Bhickar ;  13  petty  officers :  Dunniu);,  Stronjj,  Collery, 
.Tames,  Spring,  Burk,  Exshavv,  Glover,  McLaren,  Marl(»\v,  Smith,  Alexaiiiler,  Cauniii); : 
19  seamen :  Collins,  Foran,  Keruey,  McDonald,  RiinHilale,  Kilgower,  Swanton,  Moss, 
Fegan,  Crooks,  Siinins,  Hill,  Hutchinson,  Evans,  Morton,  (Siff'oril,  R:>ss,  Williams,  Sim- 
mons; 7  tireinen  :  McLane,  Ihice,  (ireen,  Burges,  Mullinoaux,  Houtherlanil,  Siiattoii  ; 
:tmarin<!H:  Riley,  Kenyon,  Brown — 411. 

/•Jnlitiled  after  leaving  Melbourne  and  before  rapture  of  the  Abagail — 1  petty  officer :  Parli : 
7  seamen  :  Welch,  Morris,  Adies,  Delonihas,  Roderick,  Stevenson,  Rostd — H. 

Knlinted  after  rapture  of  the  Abai/ail—l  officer :  Manning  ;  21  seamiMi :  Hawthorn,  Soa- 
niaii,  (iraft,  Kelley,  Ditwden,  Colar,  ratterson,  Hilc<»K,  Canning,  Vanerery.  Mill,  (iiv- 
ens,  Maliot^,  Long,  Calil'ornia,  French,  Sailer,  Brown,  Kanaea,  Hoy,  Wicks;  1  tinMniiii  : 
Carr ;  '.►  marines  :  Murray,  Silver,  Burnet,  Barrv,  Floyd,  Ivors,  Foulson,  Clury,  (irinics— 
:i2. 

Dird  on  Ihr  royaye — 1  petty  officer:  Caiming;  1  seanuiu  :  Bill — 2. 


niJitelots  juisonniors  relaches  a  Melbourne  d'un  service  l"orc«^  sur  le  8henand(»ah  ;  r>",  i)ar 
la  leftre  du  gouvenu-nr  sir  Charh^s  Darling;  <>",  par  h'  rapport  dn  drteclirv  Kennedy: 
7",  par  Vo(liiliirit  de  Forhes  ;  H",  |)ar  Vaffidarit  de  Nye,  le  comniaixlant  de  rAhigai! ;  St",  imi 
le  rapport  tU\  eajtitaine  I'aynter  an  coiitroleur  general  des  gardes-cAtes ;  10",  par  lel'ait 
i|Uo  le  capilaine  I'aynter  ne  jn'it  n'ussir  a  en  (Mintesttsr  rexactitude,  lorscju'll  avait  lt> 
raisons  el  les  moyens  de  U^  tairc. 

Si  Ton  doit  eroiie  ee  recit,  41?  p(MHonnes  recrut/(!s  j\  Melhourne,  en  violation  des  tit • 
voirs  de  la  Grande-Bretiigne  coninie  pnissanee  neutre,  s'eml»an|uerent  sur  le  Slieiian- 
doah  dansee  i)orf  :  ce  furent  1  offieiei',  llJofficierssuhalternes,  IShnatelots,  7  int^c  anicifiis- 
pompiers  et  trois  soldats  de  marine,  et,  sans  exception,  personne  <lans  co  prut  ne  li' 
•  initta  (jui  n'«'fit  t'tr  d'ahord  fait  iirisounier  et  oblig('  j)ar  force  tie  faire  1<!  service  a  liord 
<iu  vaisseau. 

Les  ehiffrcs  de  eette  eci  itun-  sont  le  resultat  d'un  exameu  critiiiue  des  doeninonts 
cites;  lorsfpi'ils  ditl'erent  de  ctMix  pn'sentt's  .jus<|u'ici,  ils  doivent  etre  juis  couime  uiif 
I't'visiou  de  nos  docMiinents  i)rec<''Jents. 

Geneve,  le  21  aout  1(^72. 


'1 


from  itivol 
■iCitjvt'nioi', 
lUHly.    Till. 
:;oinmiUt«U'r 
•  conti't)lU'r- 
lit!  Payiiti'i 
do  ,Ho,  and 
lit    is  to  l«' 
iitiou  ot  tin- 
»ah,  miiiu'lv, 
:y-live  inoii. 

,110    IKTSOll 

III  then  com 

iimination  ol 
Hitherto  \m' 

UUKMltS. 


A.  Ti'mph: 

Scales.  LiiiiiiK' 

Minor,  Coltoii, 

I,  WiirriMJ,  Hioii 

Muishiill,  IJiiw 

I :  Jones ;  2  I'nf 

ors:  Rowo,  Knv- 
Heanuni :    Way, 


Strong,  CoHtTy, 
.tidisr,  C:uinii>« : 
iSwiintoii,  M-is!*. 
\Vil\iann,  Sim- 
tihiiul,  Shatttm  ; 

itvomcta-.  PaiU: 

Hawthorn,  Sca- 
•rorv,  Hill,  <l'^- 
licks  ;  I  lirciniiii  ; 

(jlury,<lnnifs- 


knaiuloab :  T.",  pai 
[./(■o^iiT  Kt-nncily. 
lrAl>iKai!;<.)",i)ai 

,;  100,  i»arl«li»" 
>ra<iu'il  avait  U"' 

kiolatiou  ili'S  df- 

t  sur  !«•  SlK'uaii- 

Vs,7nn^fanii!iiMi>- 

llH  CO  p<»>'t   '"'     , 

1 1(!  service  a  1""'' 

I,.  (Ics  docuuiont> 
pris  coiniiic  iinc 


IX.-AIUiUMKNT  OFSIU  KOI  NDELL  PALMKK  ON  THK  SIMCCIAL 
QUESTION  AS  TO  THK  LKiJAL  EFFEirr  OE  TIIE  ENTIIANCE 
OF  THE  FLOKIDA  INTO  THE  POUT  OF  MOBILE,  ()N  TIIE  RE- 
SPONSIBILITY, IF  ANY, OF  (;ilEAT  BRITAIN  FOR  THAT  SHIP. 


It  iH  important  to  consiiU'r  tlie  principle  applirahh^  to  tlie  .s|i4'i'ial(;as(> 
of  the  Florida,  after  hIio  had  entered  the  Coiileilrrate  port  of  Mobile,  and 
there  remained  several  montliH  and  (Mili.sted  a  new  (new,  befoir  cruLxiny 
m'  eommittin};  hostilities^  against  the  Nhippiiif;  of  the  United  Hta'.es.  If 
tlie  anteeedeiit  eii(Uinistan(!t's,  ap|)lieal)le  to  this  vessel,  are  siu'h  as  (in 
tlie  view  of  the  Triluinal)  tojnstify  the  eoii<;Iiisioii  that  any  want  of  du«' 
ililigeiiee,  in  resjM'ct  to  her,  can  be  imputed  to  (Jreat  Britain,  tlie  ipies- 
tioii  arises,  whether  hucIi  want  of  duo  diligence  involves,  as  its  Icgiti- 
iiiate  eoii.sc«picnce,  responsibility  for  her  acts,  in  the  viewof  thefactthat 
•ilic  never  crniscil  or  coniHiitted  any  acts  of  hostility  aj^ainstthe  IJnitetl 
States  until  after  she  had  been  for  u  Ion;;  interval  of  time  in  a('onfed- 
iinte  port,  and  had  thence  issued  as  a  duly  commissioned  ('onfederate 
(•miser,  and  in  an  altere«l  condition  as  to  her  capacity  for  war. 

The  facts  which  oc  urred  as  to  this  vessel  are  really  not  distinguish 

able,  ill  princi)>le,  from  the  t^ase  of  u  shi|)  of  war  transported  from  a 

I  neutral  to  a  belligerent  country  by  a  breach  of  blockade,  manned  and 

made  capable  of  cruising  for  the  first  time  in   the  belligerent  (Country, 

iiiul  afterward  actually  cruising  fr<»m  theiu^e.    It  is  certain  that  the  crew 

which  was  hire«l  to  sail  with  the  Florida  from  Fnglaiid  to  Nassau,  was 

not  hired,  and  did  not  serve,  for  any  purpose  of  war;  it  is  e«pially  cer- 

I  lain  that  no  sutlicient  crew  for  8U4;h  ])urpose  was  obtained  by  her  in  the 

llahanias,  or  elsewhere  within   any  Itritish  possessi«>n.'     She  di<l  not 

Hiter  the  port  of  Mobile  simply  in  tmnsitii,  or  as  a  point  of  immediate 

nloparture  for  a  subsequent  cruise,  for  which  the  neces.sary  ]>reparatioii 

liad  been  Jilready  made  within  JSritish  territory  ;  but  she  remained  there 

liiiore  than  four  months,  from  the  4th  of  tSei)tember,  180.'$,  to  th«^  ir)th  of 

lamiary,  18(14.-'  She  there  engage«l  the  crew  which  enabled  her  to  go 
10  sea,  and  to  commit  hostilities  against  the  shipping  of  the  United 
I  States.-' 

On  what  principle  would  such  a  i^ase  as  this  have  been  dealt  with  by 
|iiitornational  law,  it  the  question  ha«l  not  been  one  of  national  respon- 

Mbility,  sought  to  be  cast  upon  (Jreat  IJritain,  but  lia«l  arisen  uiuler  the 
Ivoll-established  rules  applicable  to  neutral  citizensconcerned  in  breaches 
]i)t  blockade,  and  in  the  conveyance  of  contrabainl  of  war  to  an  enemy  * 
|lf  the  direct  agents  in  conveying  the  Florida  into  Mobile  (supposing 

pile  had  been  brought  in  by  and  under  the  charge  of  another  Jiritish 
p)  would  not  have  been  under  any  continuing  responsibility  by  iiiter- 
liiiitional  law,  after  leaving  her  there  and  returning  to  their  own  country, 
Ibw  can  it  be  said  that  such  a  continuing  responsibility  ought  to  attach 
Inpon  the  !i;ili<»n  from  whose  territory  she  was  sent  out,  merely  for  want 
jofthe  u  e  01   Uie  diligence  to  prevent  that  transaction?     Professor 

'  United  States  App.,  vol.  vi,  pp.  307,  XM. 

■  Ibid.,  p.  ;m. 


i"i 


Brit.  App.,  vol.  i,  pp.  117,  ]'20-Vi2. 


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IMAGE  EVALUATION 
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SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


ur 


ii       > 


BUnitsclili,  in   his  paper  on  tlie  Alabama  question,  ("  Kevne  de  droit 
international,"  1870,)  says,  (page  473:) 

II  lu^  faiit  (railleiirs  pas  perdre  de  vne  (^ne  tons  c<^s  elVets  desastivux  soiit  en  iJiciiii)  r 
lieu  iniputablHS,  nou  pas  an  fjouvenienuMit  anjilais.  iiiais  aiix  cioisc-urs  oiix-inciiics. 
I'ersonne  n'accustMa  le  ff'*'i^'ei"neiiieiit  anjj;lais  d'avoir  ^onin'  niisHioii  do  dotrnii.'  lis 
iiaviros  dc  coinmoice  amt^ricains  on  d'avoir,  par  stw  ajjisseineiits,  tMitravt-  on  cniloin- 
niaf^c'  la  marine  aniericaine.  Co  qne  Ton  i»ent  Ini  reinoclier  a  Iton  droit,  en  .sniiposanr 
<ine  les  faitH  cites  pins  hant  doivent  etre  consideres  comnie  avones  on  pionvc^s,  ci;  n'l  st 
pas  nn/aj7,  niais  nne  oiuinnioii  ronfrr  If  droit.  Sa  fante  ne  consistt;  pas  a  avoir  (^((uiin'ct 
appareille  les  corsaires,  niais  a  iCaroir  pan  vmpvrhi'  lenr  arnienient  et  lenr  sortie  de  sou 
territoire  nentre.  Mais  cette ./'«/( /r  n'a  (|n'iin  rapport  hidinrt,  et  nnllement  un  rainiort 
direct,  avec  les  depredations  reellenient  conuuises  par  les  corsaires.' 

In  tlie  case  of  a  breach  of  blockade  the  offense  is  deemed  bj-  interna- 
tional law  to  be  "  dei)osited,"  and  the  offense  of  the  neutral  vessel  to 
be  terminated  when  she  has  once  completed  her  return  voyage.  "Tlie 
penalty,''  says  Cliancellor  Kent,  "  never  travels  on  with  the  vessel furtber 
than  to  the  end  of  the  return  voyage ;  and,  if  she  is  taken  in  any  part  of 
that  voyage,  she  is  taken  in  deUcto.''  (Commentaries,  vol.  i.p.  lol.)  As 
to  contraband,  the  law  is  thus  stated  in  Wheaton's  "Elements,"  (Law 
rence's  Edition,  p.  809:) 

The  };eneral  rule  as  to  contraband  articles,  as  laid  down  by  Sir  \V.  Scott,  is,  that  the 
joticles  must  be  taken  in  delicto,  in  the  actnal  proseention  of  the  voyage  to  an  enemy's 
jiort.  Under  the  present  niiderstandiug  of  the  law  of  nations  yon  cannot  <^eiierai!y 
take  the  proceeds  in  the  return  voyage.  From  the  moment  of  (|uitting  port  on  a  hos- 
tile destination,  indeed,  the  ott'euse  is  complete,  and  it  is  not  necessary  to  wait  till  tlie 
goods  are  actually  endeavoring  to  enter  the  enemy's  port ;  but  beyond  that,  if  tlu' 
goods  are  not  taken  in  delicto,  ancl  in  the  actual  prosecuti(»n  of  such  a  voyage,  the  penalty 
is  not  now  generally  held  to  attach. 

Mr.  Wheaton  adds,  by  way  of  (|ualification,  that  "  the  same  learned 
judge  applied  a  different  rule  in  other  cases  of  contrabau<l,  carried  from 
lilurope  to  the  East  Indies,  with  false  papers  and  false  destination,  in 
tended  to  conceal  the  real  object  of  the  expedition,  where  the  return 
cargo,  the  proceeds  of  the  outward  cargo  taken  on  the  return  voyage, 
was  held  liable  to  condemnation."  These  were  the  cases  of  the  Rosalie 
and  Betty  and  the  Nancy;  as  co  which,  in  a  note,  the  learned  autlior 
says: 

The  soun.lness  of  these  last  decisions  may  be  well  fjuestioned  ;  for,  in  order  to  sus- 
tain the  jienalty,  there  must  be,  on  principle,  a  ddiclnm  at  the  monumt  of  seizure.  To 
subject  the  property  to  contiscation  while  the  otl'en.se  uo  longer  continues,  would  \w 
to  extend  it  indclinitely,  not  only  to  the  return  voyage,  but  to  all  future  cargoes  of  tlie 
ves.sel,  which  would  thus  never  be  purified  from  the  contagion  communicated  by  tiw 
<ontraband  articles. 

If  the  analogy  of  these  cases  is  followed,  (and  what  nearer  analoft'v 
can  be  suggested  ?)  Great  Britain  cannot  be  held  responsible  for  the 
cruises  of  the  Florida  after  her  departure  from  Mobile  in  January,  1S(»4. 

The  case  of  the  Gran  Para  (reported  in  the  seventh  volume  of  Mr. 
Wheaton's  Decisions  in  the  Supreme  Court  of  the  United  States,  p.471)' 
is  certainly  not  an  authority  for  any  contrary  princi[)le  or  conclusion. 
The  question  there  was,  not  whetlier  any  authority  of  the  United  States 
should  seize  or  detain  the  ship  Irresistible,  (then  in  the  war  service  of 
General  Artigas  as  chief  of  the  so-called  "Oriental  Republic,")  wliicli 
was  held  to  have  been  illegally  fitted  out  in  a  port  of  the  United  States, 
in  violation  of  the  neutrality  law  of  that  country — mnch  less  whether 
the  United  States  ought  to  be  held  responsible  tor  any  of  her  captures  I 
upon  the  high  seas — but  solely,  whether  the  rruise  on  which  she  liad 
taken  a  prize^  (the  Gran  Para,)  which  was  actually  brought  into  a  portj 

1  The  italicH  in  this  quotation  are  in  the  original  texto''  M.  Bliiutschli. 
-  See  also  lirit.  App.  vol.  iii,  p.  1)1.  * 


rs. 


rue  de  droit 


tout  on  ])n'ini('r 

irS     (MlX-llK'llll'S. 

do  dt'tvirut'  Ifs 
ravo  ou  cikIdiu- 
it,  en  suppcisinit 
>vonv(^s,  CI!  n'l'st 
L  avoir  (^(iniiit'ot 
•ur  soi'tio  di".  sou 
iient  un  rapport 

3(1  by  intorurt- 
tral  vessel  to 
oyage.  "The 
!  vessel  fuvtbei' 
ill  any  part  of 
i,  p.  151.)  As 
iuieiits,"  (Law- 


Scott,  is,  tliat  the 
iijre  to  an  (Mrmuv's 
.  cannot  j>eui'ridl.v 
in<j  port  on  a  \w>- 
,ry  to  wait  till  tlic 
eyond  that,  if  tlif 
oyage,  the  penalty 

e  same  learned 

1(1,  carried  trom 

destination,  in 

lere  the  retain 

return  voyage, 

of  the  Uosalic 

learned  author 

or,  in  order  to  siis- 
fnt  of  seizure.  To 
Intiuues,  would  l)f 
Ljre  cargoes  of  the 
[ininuicated  hy  tlu' 

Inearcr  analogy 
lonsible  for  the 
I  January,  l'S(U. 
volume  of  Mr. 
.  States,  p.lTl)- 
or  conclusion. 
,  United  States 
^  war  service  of  j 
Public,")  which 
\  United  States, 
[U  less  whether 
3f  her  capiiires 
which  she  hail 
Uht  into  a  port  | 

Blllatachli. 


BRITISH    ARGl.'MENT FLORIDA    AT    MOBILE. 


;) 


43 


of  the  United  States,  was  so  disconnected  from  her  ovifjinal  illegal  out- 
tit,  by  the  fact  of  her  having  been  at  Buenos  Ayres  during  the  interval, 
as  to  make  it  proi»er  for  tlie  Courts  of  the  United  States  to  refuse  to 
exercise  jurisdictiou  for  the  purpose  of  restoring  that  prize  to  her 
original  Portuguese  owner?  Ui»on  the  whole  circumstances  of  the  case 
tills  question  was  determined  iu  the  negative.  Tlie  material  facts  being 
that  the  Irresistible  was  built  at  Ualtimore,  in  all  res[>ects,  for  purposes 
of  war;  that  she  there  eidisted  a  crew  of  about  fifty  men,  and  took  in 
a  sutiicicnt  armament  for  the  purpose  of  the  crui.se  in  wliich  she  was 
afterwards  engaged ;  that  she  went  to  Buenos  Ayres,  staid  there  only  a 
few  weeks,  went  through  the  form  of  discharging,  but  inunediately 
afterwards  re-enlisted,  substantially,  the  same  crew  ;  obtained  no  new 
outfit  or  armament ;  took  a  connuLssiou  from  the  Government  of  Buenos 
Ayres  to  cruise  against  Spain,  but  sent  hack  that  mmmmion  on  the  very 
next  day  after  leaving  the  port,  when  the  officer  in  command  produced  a 
wholly  different  commission  from  General  Artiyas,  as  chief  of  the  '"'■Oriental 
Republic,^''  under  which  he  proceeded  actually  to  cruise.  It  was  with  refer- 
ence to  this  state  of  circumstances,  (so  different  from  the  facts  relative 
to  the  Florida  at  Mobile,)  that  Chief  Justice  Marshall  held  that  this 
was  a  colorable,  and  not  a  real  termination  of  the  original  cruise. 

The  principle,  (he  said)  is  now  finally  settled,  that  jnizes  made  by  vessels  which 
have  violated  the  Acts  of  Congress  that  have  heeu  enacted  for  the  preservation  of  the 
neutrality  of  the  United  .States,  if  brought  within  their  territory,  shall  be  restored. 
The  question  therefore  is,  does  this  case  come  within  the  principle  ? 

*  *  »  >'  ^*  -V  * 

Thin  Court  hnn  iktit  dirided  that  the  offciixe  adhcrcx  to  the  irsncl,  irhafcnr  rhnin/cn  uuiy 
havt  taken  plaee,  aiideainiot  hedepoxiled  at  the  lermiiiatioii  of  the  rniixe  in  prepay  in  [/for  ivhieh 
it  iruH  eoinniitted;  and,  as  the  Irresistible  nnide  no  i>rize  on  her  ]»assage  from  BaltinH)re 
to  the  River  La,riata,  it  is  contended  that  tiie  otiense  was<leitosited  there,  aiulthat  the 
Court  tiannot  connect  her  snbseiiuent  cruise  witl;  the  transactions  at  Btiltimore. 

If  this  were  to  be  admitted  in  nneh  a  case  an  ihix,  the  laws  for  the  pre.servati(ni  of 
oin-  neutrality  would  be  completely  eluded,  so  far  as  this  enforcement  depends  on  tin- 
restitution  of  i)rizes  made  in  vicdation  of  them.  X'essels  completely  fitted  in  <nir  ports 
tor  military  operations  need  only  sail  to  a  belligerent  port,  and  there,  aftisr  obtaining  a 
I'ominission,  go  through  the  certnuony  of  discharging  and  re-enlisting  their  crew,  to  be- 
lome  jterfectly  legitimate  cruisers,  jnirilied  from  every  taint  <'ontraeted  at  the  plaee 
irliere  all  their  real  force  and  cupaeitjifor  annoj/anee  wax  ae<inired.  This  would  indeed  be  a 
tiaiidnlent  neutrality,  disgraceful  to  our  own  (iovernnieut,  and  of  which  no  nation 
wcinld  be  the  dupe.  It  is  impossible  for  a  momiMit  to  disguise  the  facts,  that  the  arms 
and  ammunition  taken  on  board  the  Irresistible  at  Baltimore  were  taken  for  the  pnr- 
jMise  of  being  u.sed  on  a  crni.se,  and  that  the  men  there  enlisted,  though  engaged  iu 
loriii  as  for  a  commercial  voyage,  were  not  so  engaged  iu  fact. 

It  is  submitted  that  there  is  nothing  whatever,  in  the  view  thus  taken 
by  Chief  Justice  Marshall,  which  can  have  any  tendency  to  establish  the 
re8i»onsibility  of  Great  Britain  for  captures  of  the  Florida,  made  after 
she  left  Mobile,  and  never  brought  into  any  British  port.  The  simple 
Ijround  of  the  decision  was  that  which  the  Chief  Justice  announced  at 
the  beginning  of  his  judgment : 

The  principle  is  now  firmly  settled,  that  prizes  made  by  vessels  vvhicli  have  violated 
the  Acts  of  Congress  that  have  been  enacted  for  the  i»reservation  of  the  neutrality  of 
the  United  States,  if  brought  within  their  territory,  shall  be  restored.  The  only  ques- 
tion, therefore,  is,  does  this  case  come  within  the  principle  ? 

And  it  was  held  to  be  within  that  principle,  not  because  the  oflfen.se 
was  one  which  could  never  be  "deposited,"  but  because  the  "■deposita- 
tion" relied  upon  in  that  case  was  not  real  but  only  pretended. 

That  case,  in  faci,  fell  short  of  deciding  so  much  even  as  this:  that 
if  a  prize,  taken  by  the  Florida  after  her  departure  from  Mobile,  had 
been  brought  into  a  British  port,  and  if  the  same  rule  as  to  the  restitu- 
tion of  prizes,  which  is  the  settled  and  known  law  of  the  United  States, 
bad  also  been  the  settled  and  known  law  of  Great  Britain,  such  a  prize 


•V 


i  I 

t  I 

I  I 

1  I 


W-l 


544 


.SUPPLEMENTARY    ARGUMENTS   AND    .STATEMENTS. 


\        \ 


;! 


ought  to  have  been  restored  to  her  original  owner-s.  This  is  the  utmosr 
extent  to  which  the  authority  of  the  case  of  the  Gran  Para  could  ever 
be  8uppo.sed  to  go.  But  the  circumstances  are,  in  all  essential  points, 
so  widely  dissimilar,  as  to  make  it  no  authority,  even  for  that  liinitccl 
purpose. 

if,  in  such  a  case  as  that  of  the  Florida,  the  neutral  State  were  hold 
liable  for  the  captures  made  by  her  in  her  first  cruise,  alter  leaving  Mo 
bile,  it  seems  unavoidably  to  follow  (and  this  appears  to  be  the  conclu- 
sion actually  insisted  on  by  the  United  States)  that  there  must  be  uii 
limited  liability  for  all  her  sub.sequent  cruLses,  and  that  the  otten.se  couM 
never  be  "deposited." 

But  this  is  uot  ojdy  not  aju.st  inference  from,  it  is  in  fact  contradictory 
to,  the  doctrine  to  wliicli  Chief  Justice  Marshall  has  always  been  under- 
stood in  the  United  States  to  Inive  given  the  sanction  of  his  autnority 
in  the  Gran  Para  case.  Part  of  the  Rubric,  or  marginal  note,  prefixed 
by  the  reporter  to  that  case,  is  in  these  words  :  "A  bona  fide  termination 
of  the  cr nine,  for  which  the  illegal  armament  rcatt  here  obtained,  imtsanend 
to  the  disability  growing  out  of  our  ncutraliti/  laws  which  does  not  attacli 
indefinitely. '''' 

The  Florida  could  not  iiave  cruised  without  a  proper  crew  ;  it  was  in 
a  port  of  her  own  country  that  she  tirst  obtained  such  a  crew,  and  so 
acquired  the  capacity  of  cruising.  The  equipment,  which  she  had  re- 
ceived before  reaching  Mobile,  was  therefore  only  partial  and  incom- 
plete. Even  assuming  that  she  obtained  this  equipment  under  circuiii 
stances  which  involved  some  failure  in  the  use  of  proper  diligence  on 
the  part  of  Great  Britain,  on  what  principle  can  Great  Britain  be  charged 
with  all  her  subsequent  captures'  Would  not  such  a  principle  involve 
the  liability  of  a  neutral  State  to  be  charged  with  all  captures  made  by 
a  vessel  which  had  obtained,  within  its  territory,  through  .some  want  of 
due  diligence  on  the  part  of  its  authorities,  any  kind  or  degree  whatever 
of  equipment,  or  augmentation  of  warlike  force,  however  impossible  it 
might  be  to  prove  that  such  equipment  or  augmentation  of  force  was  the 
proximate  cause  of  any  of  her  captures,  and  in  however  large  a  degree 
other  causes  may  have  evidently  contributed  to  her  means  of  ott'ense  .' 
If  what  was  done  to  the  I'lorida  at  Mobile  had  been  done  in  a  Spanisli 
])ort,  by  the  permission  or  culpable  neglect  of  the  authorities;  if,  after 
lying  for  four  months  in  a  Spanish  port,  she  had  there,  for  the  first  time, 
obtained  a  lighting  crew,  and  had  been  dispatched  from  thence  to  prey 
u[)on  American  commerce,  would  it  still  have  been  contended  that  Great 
Britain,  and  not  Spain,  was  liable  ?  Or  would  it  have  been  contended 
that  both  Great  I>ritain  and  Spain  were  liable,  under  such  circumstances, 
and  that  the  liability  of  both  was  indefinite  and  unlimited  till  the  con 
elusion  of  the  war  .'  Will  the  Tribunal  give  its  .sanction  to  such  doc 
trines  as  these,  not  only  without  any  aid  from  authority,  but  in  opposi 
tion  to  all  the  light  which  is  derivable  from  the  reason  and  analogy  of 
the  doctrines  of  international  jinisprudence,  and  of  the  jurisprudenec 
of  the  United  States  themselves,  in  other  cases,  which  ought  to  be  gov 
erned  by  similar  principles  ? 

The  legitimate  inference,  from  the  analogy  of  the  law  as  to  breach  of 
contraband,  is,  that  any  responsibility  which  Great  Britain  may  have 
been  under  as  the  neutral  State  from  which  the  Florida  was  introdiiced 
into  Mobile,  came  to  its  natural  end  when  (having  previously  committed 
no  act  of  war)  she  was  once  at  home  iu  that  port,  and  became  bona  Ji(k 
incorporated,  within  their  owu  territory,  into  the  naval  force  of  the  Con 
federate  States.  The  legitimate  inference  from  the  doctrine  of  Chief 
Justice  Marshall,  in  the  case  of  the  Crran  Para,  is,  tliat  having  been  once 


*  ''.' 


BRITISH    ARGUMENT — FLORIDA   AT   MOBILE. 


545 


be  v.eve  hold 
leaving  Mo 
i  the  conclu- 
must  be  un- 
atteiise  couM 


3W  ;  it  wjis  in 
crew,  and  so 
[\  she  had  re 
al  and  incom- 
under  circuin 
r  diligence  on 
vin  be  charged 
neiple  involve 
titres  made  by 
some  want  ot 
oree  whatever 
^impossible  it 
•  force  was  the 
arge  a  degree 
[ns  of  offense  I 
in  a  Spanish 
fities ;  if,  after 
the  first  time. 
hence  to  prey 
led  that  Great 
jeeu  contended 
ircumstanccs. 
jd  till  the  con 
,u  to  such  doc 
but  in  opposi 
|nd  analogy  ot 
jurisprudenee 
ght  to  be  gov- 


bona  fide  received  into  Mobile,  as  her  proper  port,  and  having  been  there 
manned,  and  dispatched  from  thence  for  her  subsequent  cruise,  an 
effectual  line  of  separation  was  drawn,  for  all  legal  and  international 
purposes,  between  everything  which  had  occurred  before  she  entered 
iato  that  port  and  everything  which  occurred  afterward ;  and  that  (no 
hostile  cruising  against  the  United  Spates  having  taken  place  during 
the  interval  between  her  leaving  Liverpool  and  her  entrance  into  Mo- 
bile) Great  Britain  had  no  just  cause  for  afterward  refusing  to  her  the 
ordinary  immunities  aud  privileges  of  a  duly-commissioned  ship  of  war 
of  a  belligerent  Power,  cud  certainly  was  not  under  any  obligation 
toward  the  United  States  to  do  so,  even  if  a  different  rule  would  have 
been  applicable  to  such  a  ship  as  the  Alabama,  which  was  not  dispatched 
for  her  cruise  from  any  Confederate  port. 

As  bietween  Great  Britain  and  the  Florida  the  case  stood  thus.  Her 
acquittal  at  Nassau  was  conclusive,  as  a  judgment  in  rem,  so  as  to  make 
it  unjustifiable  and  impossible  for  any  British  authority  afterward  to  re- 
vive against  her  the  causes  of  complaint  which  had  occurred  before  that 
acquittal ;  and  her  subsequent  reception  of  an  armament  at  Green  Cay, 
not  being  accompanied  or  preceded  by  the  enlistment  of  any  crew  suf- 
ficient for  hostilities,  and  not  being  followed  by  any  warlike  operations 
before  her  entrance  into  Mobile,  though  it  was  an  infringement  of  Brit- 
ish municipal  law,  was  not  such  an  offense  by  genera  international  law 
as  to  call  for  or  justify  war  or  reprisals  against  the  Confederate  States, 
nor  such  as  to  adhere  to  the  ship  through  all  subsequent  circumstances. 
The  responsibility  of  Great  Britain  to  the  United  States,  in  respect  of 
this  ship,  could  not  exceed  the  responsibility  of  the  Confederate  States, 
I  ill  respect  of  the  same  ship,  to  Great  Britain. 

RouNDELL  Palmer. 


35  c 


X.-REPLY  OF  THE  COUxXSEL  OF  THE  UNITED  STATES  TO  THI- 
ARGUMENT  OF  HER  BRITANNIC  MAJESTY'S  COUNSEL  OX  THK 
SPECIAL  QUESTION  OF  THE  LEGAL  EFFECT,  IF  ANY,  OK 
THE  ENTRY  OF  THE  FLORIDA  INTO  THE  PORT  OF  MOBILH 
AFTER  LEAVING  THE  BAHAMAS,  AND  BEFORE  MAKING  ANY 
CAPTURES. 


';  'i 


The  Florida,  after  her  illegal  outfit  as  a  ship  of  war  in  the  iieiitial 
territory  of  Great  Britain,  and  the  completion  of  her  arraament,  warlike 
munitions,  and  crew  from  the  same  neutral  territory,  took  the  seas  undei 
a  Confederate  commission,  and  after  an  unsuccessful  attemjit  to  add  to 
her  complement  of  men  by  violating  the  neutrality  of  Spain,  slipped 
into  Mobile  by  a  fraudulent  imposition  upon  the  blockading  vessels, 
which  her  British  origin  enabled  her  to  practice.    She  was  there  imj)ris- 
oned  four  months  before  she  was  able  to  elude  the  vigilance  of  the 
blookaders,  and  she  obtained  there,  it  is  said,  some  addition  to  the  force 
of  the  crew  which  she  had  when  she  entered  that  port.    Her  captures  i 
were  made  after  she  left  Mobile,  and  a  question  of  public  law  is  now 
raised  upon  this  state  of  facts,  to  this  effect:  " Is  the  responsibility  ot  j 
Great  Britain  to  the  United  States  for  the  depredations  of  the  Florida 
relieved  by  this  visit  of  that  cruiser  to  a  Confederate  port  under  the  cir- 
cumstances in  evidence  ?"    The  question  assumed  that,  but  for  this  visit,  | 
the  neutral  responsibility  for  the  acts  of  this  cruiser  would  exist,  and 
seeks  to  arrive  at  the  significance,  if  any,  of  this  visit  in  relieving  tlie  j 
neutral  from  such  responsibility.    The  Counsel  of  Her  Britannic  Miij 
esty  has  discussed  this  question,  and  we  now  offer  a  brief  reply  to  Ins 
Argument. 

I.  It  is  said  that  a  limitation  upon  a  neutral's  responsibility  for  the 
acts  of  a  cruiser,  for  which  the  neutral  would  otherwise  continue  to  bo 
responsible,  may  be  found  in  the  principle  of  the  rule  by  which  neutral 
trade  in  contraband  of  war  and  belligerent  right  to  prevent  it  are  regii 
lated.    This  rule  is  understood  to  be,  that  the  belligerent  right  to  inter 
cept  or  punish  trade  in  contraband,  carried  on  by  a  neutral,  must  bo| 
exercised  during  the  guilty  voyage,  and  that  it-t  termination  ends  the  be! 
ligerent's  redress  and  the  neutral's  exposure.    The  view  which  we  take  j 
of  this  suggestion  makes  it  unnecessary  to  consider  whether  the  more 
strict  or  the  more  liberal  measure  of  the  duration  of  the  guilty  voyage  j 
is  the  proper  one. 

It  seems  to  us  that  it  needs  but  little  attention  to  the  nature  of  tliisj 
struggle  between  neutral  nght  to  trade  and  belligerent  right  to  restrict  j 
and  defeat  that  trade,  and  to  the  solution  of  these  conflicting  an-l  com 
peting  rights  which  the  law  of  nations  has  furnished,  to  reject  the  an 
alogy  as  valueless  in  the  present  discussion. 

Neutral  nations  properly  insist  that  their  trade  is  not  to  be  surrendered! 
because  of  the  war  between  the  two  belligerents.  But  they  concede  tliat  j 
the  belligerent  Powers,  as  against  each  other,  may  rightfully  aim  at  tbej 
restriction  or  destruction  of  each  other's  commerce.  How  far  the  bellig- 
erent may  press  against  his  enemy's  commerce,  which,  in  turn,  is  also! 
the  neutral's  commerce,  and  how  much  the  neutral  must  acquiesce  in  m 
commerce  being  dealt  with  in  its  character  of  being  also  the  eneiuy'sl 


AMERICAN    APGUMENT — FLORIDA   AT   MOBILE. 


547 


.TES  TO  THE 
ISEL  OX  THE 
IF  ANY,  OF 
OF  MOBILE, 
\\\Yi\m  ANY 


ill  tlie  ueiitial 
anient,  warlike 
the  seas  undei 
empt  to  add  to 
Spain,  slipped 
iading  vessels, 
as  there  ini])ris- 
igilance  of  the 
ion  to  the  force 

Her  captures 
iblic  law  is  now 
responsibility  of 
,  of  the  Florida 
rt  under  the  cir- 
)ut  for  this  visit, 
roukl  exist,  aiul 
in  relieving  tlie 

Britannic  Maj 
•ief  reply  to  his ) 

Insibility  for  the 
continue  to  bo 
which  neutral  I 
[-ent  it  are  regu- 
it  right  to  inter 
leutral,  must  be  I 
,11  ends  the  bel 
which  we  take ! 
lether  the  more  | 
,e  guilty  voyage] 

^  nature  of  this 
\  right  to  restrict 
licting  and  com 
lo  reject  the  an- 

J  be  surrendered 
hey  concede  that 
bfuUy  aim  at  the 
liwfarthebelli}!;- 
in  turn,  is  also 
^  acquiesce  iu  m 
llso  the  enemy's' 


commerce,  is  the  problem  to  be  solved  in  the  interest  of  preserving  peace 
with  the  neutrals,  and  restricting  the  war  to  the  original  belligerents. 

The  solution  arrived  at,  and  firmly  and  wisely  established,  covers  the 
three  grounds  of  (I)  neutral  trade  with  ports  of  the  enemy  under  actual 
blockade ;  (2)  visitation  and  search  of  neutral  ships  to  verify  the  prop- 
erty, in  ship  and  cargo,  as  being  really  neutral ;  (3)  the  interception  and 
ondemnation  of  contraband  of  war,  though  really  of  neutral  ownership 
and  though  not  bound  to  a  blockaded  port.  It  is  with  the  last  only 
that  we  have  to  deal. 

There  were  but  three  modes  iu  which  the  consent  of  nations  could 
dispose  of  this  question  of  contraband  trade.  First,  It  might  have 
been  proscribed  as  hostile,  and,  therefore,  criminal,  involving  the  nation 
suffering  or  permitting  it,  or  not  using  due  diligence  to  prevent  it,  in 
complicity  with  and  responsibility  for  it.  'This  has  been  contended  for 
as  the  true  principle  by  able  publicists,  but  has  not  obtained  the  consent 
of  nations.  Second,  It  might  have  been  pronounced  as  free  from  bel- 
ligerent control  as  all  other  neutral  commerce,  submitting  only  to  veri- 
fication as  really  neutral  in  ownership,  and  to  exclusion  only  from  block- 
aded ports.    This  has  been  contended  for,  but  has  not  been  accepted. 

The  only  other  disposition  of  this  contlict  of  rights  and  interests  at 
all  reasonable  is  that  which  has  been  actually  accepted  and  now  consti- 
tutes a  rule  of  the  law  of  nations.  This  limits  the  right  of  the  bellig- 
erent, and  the  exposure  of  the  neutral,  to  the  prevention  of  the  trade  in 
contraband  by  warlike  force  for  capture,  and  prize  jurisdiction  for  for- 
feiture. Manifestly,  the  natural,  perhaps  the  necessary,  limit  of  this 
right  and  exposure,  by  the  very  terms  of  the  rule  itself,  would  be 
liayrante  delicto  or  during  the  guilty  voyage.  To  go  beyond  this  would, 
in  principle,  depart  from  the  reason  of  the  actual  rule  and  carry  you  to 
the  ground  of  this  trade  being  a  hostile  act  in  the  sense  in  which  the 
consent  of  nations  has  refused  so  to  regard  it.  But,  to  adhere  to  the 
principle  on  which  the  rule  stands  and  .attempt  to  carry  its  application 
beyond  the  period  of  perpetration,  would  involve  practical  difficulties 
wholly  insurmountable,  and  encroachments  upon  innocent  neutral  com- 
merce wholly  insupportable.  How  could  you  pursue  the  contraband 
merchandise  itself  in  its  subsequent  passage,  through  the  distributive 
processes  of  trade,  into  innocent  neutral  hands  ?  But,  while  it  remained 
ia  belligerent  hands,  it  needs  no  other  fact  to  expose  it  to  belligerent 
operations,  irrespective  of  its  character  or  origin.  Again,  how  can  you 
atfect  the  vessel  which  has  been  the  guilty  vehicle  of  the  contraband 
merchantlise  in  a  former  voyage,  with  a  permanent  exposure  to  bellig- 
erent force  for  the  original  delict,  without  subjecting  general  neutral 
trade  to  inflictions,  which  are  in  the  unture  of  forcible  punishment,  by  the 
belligerent  of  the  neutral  nation,  as  for  hostile  acts  exposing  the  neutral 
nation  to  this  general  punitive  harassment  of  its  trade  ? 

It  will,  we  think,  be  readily  seen  that  this  analogy  to  contraband  trade, 
as  giving  the  measure  of  the  endurance  of  the  responsibility  of  Great 
Britain  for  the  hostile  expedition  of  the  Florida,  is  but  a  subtle  form  of 
I  the  general  argument,  that  the  outfit  of  the  Florida  teas  but  a  dealing  in 
(ontraband  of  war,  and  was  to  carry  no  other  consequence  of  responsibility 
I  than  the  law  of  nations  affijced  to  that  dealiwj.  But  this  argument  has 
been  suppressed  by  the  Kules  of  the  Treaty,  and  need  be  no  further 
I  considered. 

II.  The  criticism  on  the  celebrated  judgment  of  Chief  Justice  Mar- 

I  shall,  in  the  case  of  the  Gran  Para,  does  not  seem  to  shake  its  force  as 

authoritative  upon  the  j)recise  point  under  discussion,  to  wit,  whether  a 

visit  to  a  belligerent  port  terminated  the  neutral's  duty  and  responsi- 


548 


SUPPLEMENTARY    ARGUMENTS   AND    STATEMENTS. 


\P 


I 


r\ 


1     ♦ 


bility  in  respect  of  a  vessel  wbich,  in  its  origin  and  previous  character 
lay  at  the  neutral's  charge.  It  is  not  profitable  to  consider  the  special 
distinctions  which  may  be  drawn  between  the  facts  of  the  Gran  Para 
and  of  the  Florida  in  this  respect.  If  it  is  supposed  that  other  circuin 
stances  than  the  mere  visit  of  the  Florida  to  a  Confederate  port  divested 
her  of  being  any  longer  an  instrument  of  rebel  maritime  war,  furnished 
from  the  neutral  nation,  we  fail  to  find  in  the  evidence  any  support  to 
such  suggestions.  Certainly,  the  fact,  if  it  existed  or  was  shown  by  any 
definite  evidence,  of  the  fluctuating  element  of  actual  hostilities,  or 
navigation  in  the  ju'esence  on  board  of  substituted  or  added  seauien, 
does  not  divest  the  cruiser,  its  armament,  its  munitions,  and  its  setting 
forth  to  take  and  keep  the  seas,  of  their  British  origin  and  British 
responsibility.  These  all  continued  up  to  the  violation  of  the  blockade, 
which  they  enabled  the  Florida  to  make.  They  equally  enabled  it  to 
take  and  to  use  in  the  hostile  cruise  the  enlistments  at  Mobile.  Yet,  if 
there  be  anything  in  the  learned  Counsel's  argument,  it  comes  to  this: 
that  the  seamen  enlisted  at  Mobile  became,  thereafter,  the  effective 
maritime  war  of  the  Florida,  and  the  cruiser  and  her  warlike  and  navi- 
gable qualities  "suffered  a  sea  change,"  which  divested  them  of  all 
British  character  and  responsibility.  This  reasoning  is  an  inversion  of  | 
the  proposition,  Omne  principale  ad  se  trahit  accessoriuin. 

III.  As  a  matter  of  fact,  the  evidence  concerning  what  happened  at 
Mobile  by  no  means  exhibits  the  crew  with  which  tne  Florida  left  Mobile 
as  original  enlistments  there.    The  force  she  took  from  Nassau,  aud 
which  enabled  her  to  make  the  port  of  Mobile,  must  have  adhered  to  j 
her.    All  the  motives  for  such  adherence  continued  in  full  force,  and  in 
a  port  without  ships  or  trade,  and  so  absolutely  closed  as  Mobile  was,  | 
there  was  no  possible  chance  for  them,  as  seamen,  except  to  adhere  to 
the  Florida.    The  evidence  does  not  contain  any  shipping  articles,] 
either  at  Nassau  or  at  Mobile,  and  the  list  made  by,  or  for  verification 
by,  Thomson  at  Liverpool,  in  reference  to  prosecutions  under  the  For-  j 
eign-Eiilistment  Act,  was  made  only  in  reference  to  nationality  and  the 
l)lace  where,  within  Thomson's  knowledge,  (who  did  first  join  her  at 
Mobile,)  he  found  them  connected  tcith  the  Florida.    Very  possibly  a  form 
of  enlistment  or  engagement,  as  from  Mobile  as  the  place  of  departure,  j 
if  they  could  ever  get  out,  for  the  purposes  of  wages  or  otherwise,  may  j 
have  been  gone  through  at  Mobile,  though  it  is  not  so  proved.    A  pernsiil 
of  Thomson's  affidavit  will  show  that  it,  aud  the  accompanying  list,! 
relate  only  to  crew  dating  on  the  cruise  from  Mobile,  or  from  later 
recruitment,  and  that  he  imports  to  give  no  evidence  that  there  were  I 
not  re-enliiitments  at  Mobile  of  her  former  crew,  except  in  his  own  case,! 
or  by  incidental  inference,  perhaps,  in  some  others. 

IV.  The  learned  Counsel  diverges,  as  it  seems  to  us,  from  the  point  I 
open  for  discussion  into  a  somewhat  vague  inquiry  as  to  what  shoultl 
be  the  consequences  in  respect  of  indemnity  to  the  United  States,  from 
the  responsibility  of  Great  Britain  for  the  violations  of  her  obligations 
as  established  by  the  three  Rules  of  the  Treaty,  if  the  Tribunal  should! 
find  Great  Britain  so  responsible. 

We  have  considered  this  subject  in  our  Argument,  submitted  on  tliej 
15th  of  June,  and  need  not  renew  th.at  discussion  unless  it  is  required! 
from  us.  Of  course  minute  and  artificial  reasoning  may  attempt  toj 
make  out  that  the  last  man  essential  to  a  crew  for  navigation  or  fighting,! 
or  the  last  rope  or  spar  which  she  could  not  spare,  was  the  guilty  cause! 
of  all  a  cruiser's  subsequent  depredations,  and  that  all  preceding! 
structure,  fitment,  armament,  munitions,  officers,  and  men,  are  absolved] 
from  any  share  of  the  g  lilt.    This  reasoning  may  point  the  wit  of  tlie 


AMERICAN   ARGUMENT FLOKII'A    AT   MOr.ILE. 


54i> 


proverb  that  "  it  is  the  last  ounce  that  breaks  the  camel's  back,"  but  will 
uot  go  much  further.  The  response  is  too  itn mediate.  What  preceded 
is  what  gives  the  place  and  power  for  the  casual  incorporation  of  the  new 
iitom,  and  the  preceding  preparations  laid  foundation  for  these  casual 
[ind  fluctuating  elements  of  prosperous  war,  and  therebj',  as  well  as  di- 
rectly, for  the  war  itself.  Again  we  have  only  need  to  repeat,  ^^Omne 
principale  ad  sc  trahit  acccssoriumy  The  provisions  of  the  Treaty  plainly 
indicate  what  the  responsibility  for  indemnity  should  be  if  the  responsi- 
bility for  fault  be  established. 

C.  CUSIIIKG 
WM.  ]\r.   EVARTS. 

M.  E.  Waite. 


P""~ 


'■': 


i 


Ml 


t  (-■ 


til 


r 


XL-ARGUMENT  OF  SIR  ROUNDELL  PALMER  ON  THE  CLAIM 
OF  THE  UNITED  STATES  FOR  INTEREST  BY  WAY  OF  DAM- 
AGES. 


1.  The  question  of  the  allowance  of  intoreist  on  the  sums  cluimcMl  in 
respect  of  their  alleged  losses  by  the  United  States,  is  one  of  grave  im- 
portance, both  in  i)riuciple  and  in  amount.  It  has  not  hitherto  been 
discussed,  with  any  precision  or  fullness,  by  either  party.  By  Great 
Britain  this  demand  has  been  simply  demurred  to  in  i)riuciple ;  it  was 
thought  premature  to  enter  into  any  detailed  argument  on  that  subject 
until  some  liabilitj'  should  have  been  established,  which  would  properly 
raise  the  question.  The  United  States,  in  their  Argument,  presented 
on  the  15th  of  June,  have  suggested  (paragraphs  484-'5)  some  reasons 
why,  if  a  gross  sum  is  awarded,  "interest"  should  be  "awarded  by 
the  Tribunal  as  an  element  of  the  damage ;"  but  these  reasons  are  very 
short  and  vague,  and  no  attempt  has  been  made  to  develop  them  in 
such  a  manner  as  to  be  of  any  real  afpistance  to  the  Tribunal. 

2.  It  is  necessary  to  bear  in  mind  what  it  is  which  the  Tribunal  has 
power  to  do  in  this  matter.  Under  the  seventh  Article  of  the  Treaty, 
on  finding  that  Great  Britain  has  failed  to  fulfill  any  of  the  duties  i)re 
viously  mentioned,  in  respect  of  any  of  the  vessels,  the  Tribunal  "  may, 
if  it  think  proper,  proceed  to  award  a  sum  in  gross  to  be  paid  by  Great 
Britain  to  the  United  States  for  all  the  claims  referred  to  it."  If  it 
does  not  award  a  sum  in  gross  under  this  Article,  the  duty  of  examin- 
ing and  of  ascertaining  and  determining  the  validity  of  all  the  claims 
brought  forward,  and  "  what  amount  or  amounts  shall  be  paid  by  Great 
Britain  to  the  United  States  on  account  of  the  liability  as  to  each  ves- 
sel, according  to  the  extent  of  such  liahility  as  decided  by  the  Arbitrators,^^ 
will  devolve  upon  Assessors,  under  the  tenth  Article. 

It  may  be  that  the  Tribunal  has  power  to  decide,  if  it  should  think  it 
right  and  just  to  do  so,  that  on  all  or  some  part  of  the  principal  amounts 
of  the  losses  for  which  Great  Britain  may  be  found  liable,  when  ascer- 
tained and  determined  by  Assessors  in  the  manner  provided  by  the 
tenth  Article,  Great  Britain  should  further  be  liable  to  pay  interest  at 
some  rate  or  rates  to  be  fixed,  which  interest  would,  in  that  case,  have 
to  be  computed  by  the  Assessors,  and  would  be  included  in  the  sum  or 
sums  finally  ascertained  and  determined  by  them  as  payable  by  Great 
Britain.  But  it  is  indisputable,  on  the  other  hand,  that,  under  the 
ninth  Article,  the  Tribunal  has  no  power  to  direct  any  interest  to  be 
paid  upon  any  gross  sum  which  they  may  think  fit  to  award.  It  is  one 
gross  sum  only,  to  be  paid  in  coin  within  twelve  months  after  the  date 
of  the  award,  which  they  have  power  to  allow.  The  Counsel  for  the 
United  States  appear  to  be  sensible  of  this,  when  they  assume  in  the 
passage  of  their  Argument  already  quoted  (page  484)  that  "interest 
will  be  awarded  by  the  Tribunal,  as  an  element  of  the  damage  ;"  the  mean- 
ing of  which  evidently  is,  that  they  ask  the  Tribunal,  when  fixing  the 
amount  of  the  gross  sum  (if  any)  which  they  may  award  to  be  paid,  to 
take  into  consideration,  and  to  include  in  such  gross  sum,  (among  other 
"elements  of  damage,")  some  allowance  in  respect  of  interest  upon  the 
losses  for  which  Great  Britain  is  held  responsible. 


BRITISH    ARGUMENT INTEREST, 


551 


3.  Wheu  atteutiou  is  directed  to  the  uatiire  of  tlie  process  by  which 
ouly  the  Arbitrators  can  arrive  ut  any  gross  sum  to  be  awarded  against 
Great  Britain,  and  to  the  materials  or  "eleinents'-  available  to  them 
tor  the  purposes  c.*'  such  an  award,  it  will  be  clearly  seen  that  they  can- 
not, without  ilisregardiny  eyery  principle  on  which  the  doctrine  ol' 
interest  ordinarily  rests,  make  any  sucli  allowance.  Instead  of  being 
"confornuible  to  public  law,"  and  "  recpiircd  l)^^- ])evnianent  considera- 
tions of  equity  and  justice,"  this  demand  can  be  demonstrated  without 
diUiculty  to  be  Just  the  reverse.  The  proots,  however,  of  this  pro[»()si- 
tion  wdl  l»e  better  undei'stood,if,  in  the  lirst  instance,  we  ascertain  the 
rules  of  civil  jurisprudence,  ai)i»lical)le  to  the  subject  of  int(!r<'st. 

4.  I'ulting  aside  those  (tases  in  sviiich  the  lial)ility  of  an  individual 
to  pay  interest  rests  upon  an  express  or  iniplie«l  contract,  or  upon  posi- 
tive legislation,  it  may  be  stated  generally,  that  interest,  in  tlu!  proper 
sense  of  that  word,  (;an  only  be  allowed  where  there  is  a  juiucipal  del)t, 
ot  li(pudated  and  asccrtaiiu'd  amount,  detained  and  withheld  by  the 
debtor  iVoin  tln^  creditor  alt<M'  the  time  wIhmi  it  was  absolutely  due,  and 
ought  to  have  been  j)aid,  the  fault  of  the  (b'lay  in  i)ayment  resting  with 
the  <lelttor;  or  where  the  debtor  has  wrongfully  taken  possession  of,  and 
exercised  donunion  over,  the  projjcrty  of  tlie  creditor. 

Ill  the  fornu'rcase,  from  the  time  when  the  debt  ought  to  have  been 
l)aid,  tho'debtor  has  liad  the  use  of  tbe  creditor's  nu)ney,  ami  nniy  justly 
he  presumed  to  have  employed  it  lor  his  own  profit  an(l  advantage,  lb- 
has  thus  made  a  gain,  corresponding  witli  the.  loss  which  the  creditor 
has  sustained  by  being  de[)rived  during  the  same  period  of  time  of  the 
use  of  his  nH)ney  ;  ami  it  is  evidently  just  that  he  should  account  to  the 
creditor  for  the  interest,  whi<;h  the  law  takes  as  the  measuje  of  this 
re(uprocal  gain  and  loss.  In  the  latter  case  the  jjrinciple  is  exactly  the 
sanu':  it  is,  oriUmirily,  to  be  pretauned  that  the  pcson  who  has  wrong- 
fully taken  |)ossession  of  the  property  of  another  has  enjoyed  the  fruits 
of  it ;  and  if,  instea<l  of  this,  he  has  destroyed  it,  or  kept  it  unproduc- 
tive, it  is  still  just  to  hold  him  responsible  for  interest  on  its  value, 
be(!ause  his  own  acts,  after  the  time  when  he  assumed  control  o\'er  it, 
are  the  causes  why  it  has  remained  unirintfnl. 

In  all  these  cases  it  is  the  actual  or  virtiud  ))ossession  of  the  money  or 
proi)erty  belonging  to  another,  which  is  the  fouiubition  «)f  the  liability 
to  interest.  The  person  liable  is  either  Ineratm  by  the  detention  of  what 
is  not  his  own,  or  is  justly  accountable,  as  if  he  were  so. 

5.  The  rules  ot  the  lloman  law,  as  to  interest  for  m)n-i)ayment  of  a 
debt  due  upon  contract,  are  in  strict  accordance  with  tbe  above  state- 
ment: "  In  bona?  fidei  contractibus,  usuriecr  ))}om  debentui."  (Digest, 
hb.  32,  §  2 ;  lib.  17,  §  3.)  '^Interest,"  says  Domat,  (lib.  3,  tit.  5,  §  I,)  " is 
the  name  applied  to  the  coinpensation  whicli  the  law  gives  to  the  cred- 
itor, who  is  entitled  to  recover  a  snm  of  uxouey  from  his  debtor  in  default.''^ 
(Cited  in  Sedgwick  on  J^amages,  page  -13i.) 

The  Code  Civil  of  France  in  like  manner  (lib.  3,  tit.  3,  "Contrats  et 
Obligations,"  Art.  lift!) i)rovides that  "lesdonnnageset  in terets,"( which, 
in  the  absence  of  a  stipulated  amount  between  the  i)arties,  are  limited, 
by  Art,  1153,  to  the  rate  of  interest  fixed  by  law,)  "  ne  sont  dus  que  lors- 
que  le  debiteur  est  en  demciire  de  remplir  une  obligation  f  an<l  Art.  11.39 
(letbies  the  meaning  of  this  expression  :  "Le  debiteur  est  coustitue  en 
demeure,  soit  par  une  sommation,  ou  par  autre  acte  e(]uivalent,soit  par 
I'eftet  de  la  convention,  lorsqu'elle  porte  que,  sans  qu'ifsoit  besoin  d'a(;te, 
et  par  la  seule  ^cheance  du  terme,  le  debiteur  sera  en  demeure."  The 
laws  of  Great  Britain  and  America  recognize  the  same  principles. 

6.  Mr.  Sedgwick,  au  American  author,  whose  work  "  On  the  Measure 


552 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


i.i 


of  Daiuagea"  is  highly  esteemed,  i  id  of  fiequeut  reference  iu  the  court:* 
of  Great  Britain,  as  well  as  iu  those  of  the  L'uited  Htates,  has  a  chapttM 
(XV)  on  "  Interest  with  reference  to  Dammjea."    At  ])ag'e  373  he  says: 

Tlio  iillowance  or  iiiUictiou  of  inti-roHt  often  prcscutf*  itself  entirely  <lineonne(;t((l 
from  any  qiicMtion  of  eoiitriiet  ;  and,  in  this  anpeet.  tin;  Hnl)jeet  eunnot  lie  ouutti'd  in 
any  work  wiiich  treats  of  eoniiiensation,  lor  it  is  to  lie  oliserved  jieuemlly,  to  use  Ww 
langnaj;<i  of  Lord  Konyon,  that  where  inteii'st  is  intendi;d  to  he  given,  it  tonus  part  ul 
the  danuigos  assessed  hy  the  Jury,  or  hy  those  who  arc  suhstitnted  in  their  ]ihieo  by  the 
parties. 

The  Hubjeet  of  interest  is  snseeptilde  of  vt,-ry  clearly  dfdined  division  :  jiml,  where  ii 
can  he  claimed  as  a  rinht,  eitlmr  heeanse  tliere  ^s  an  express  eonlraet  to  i)ay  it.  or  i)(; 
cause  it  is  reeo^cMnbie  as  daniaijes  which  the  party  is  legally  hound  to  pay  for  tlic 
detention  of  nuiney  or  jjroperty  improperly  withheld;  hccoikI,  wliere  it  is  iinpo-idl  td 
l>nnish  ne;;lip)nce,  tortious,  or  I'randulent  conduct.  In  tin;  lirst  cast!  il  is  reeovcralijr 
as  nuitter  of  law.     In  the  secoml  case  it  rests  entirely  in  the  pleasure  of  tlie  jury, 

Ho  then  states  the  rules  of  the  Eiijjlish  law,  that  "  all  contracts  to  pa.N 
undoubtedly  ^ive  a  ri^jfht  to  interest yW>wj  the  time  when  the  i)rineipal  <tu</iii 
to  be  paid  ;"'  and  that  "  where  money  is  diu^,  iclthoat  ani/  (lejinite  time  <>/ 
payment,  and  there  is  no  contract,  express  or  implied,  that  interest  sliiiil 
he  paid,  the  Kufflish  ride,  independent  of  statute,  is,  that  it  cannot  Itc 
claimed." ' 

This  latter  ride  does  not  appear  to  be  adopted  iu  the  greater  nuuihei 
of  the  United  States. 

"There is,"  saysMr.  Sedgwick,  "  c(msideral)lcrtinlliet  and  contradietiou  hetwcmtln 
English  and  American  cases  on  this  subject.  But,  as  a  general  thing,  it:  may  be  said 
that  while  the  triljunals  of  the  i'ornier  country  restrict  tliemsehcs  gi^neially  to  tlmsf 
cases  wlu^re  an  agnienient  to  jiay  interest  can  be  provt^l  ov  inferred,  the  couits  of  the 
United  States,  on  the  otbei'  hand,  have  shown  themselves  nnirc  liherall;,  disposcil. 
niakhifi  the  allownme  of  inlercHt  nuin'  nvurUj  lo  dcpi'iiil  upon  thf.  I'qnifij  of  the  case,  and  not 
requiring  an  express  or  implied  )iroi)iise  to  sn-itaiu  the  claim.  'V\n'  leading  dill'iMiiicv 
seems  to  growout  of  a  different  coufidcriitioii  of  tin*  nature  td"  the  nioiwy,  Thi  Jino-imn 
cases  look  upon  the  itiimfifas  ihv  .itcessarii  hicidciil,  the  natural  f/rowth,  of  the  mniuii,  ond 
therefore,  incline  to  give  it  with  the  prineipnl ;  while  the  English  treat  it  as  sometiiiug  dis- 
tinct and  independent,  and  only  to  be  had  by  virtnt^  of  some  positive  agreeuuiit."  •' 

The  American  rules  for  the  aj)plication  of  the  principles  recognized 
in  their  courts  were  thus  stated  by  the  Chief  Justice  of  New  York,  iiiii 
case  in  which  the  whole  subject  was  carefully  examined : 

From  an  exannnatiou  of  the  cases,  it  seems  that  interest  is  allowed:  (1)  Upon  a 
special  agreement;  (2)  Upon  an  implied  prouuse  to  pay  it:  and  this  may  arise  iVoui 
usage  between  the  p.irties  or  usage  of  a  particular  trade;  (:{)  When  montij  is  withheld 
against  the  will  of  the  owner ;  (4)  13y  w'ay  of  i)Uiushment, /or  any  illegal  conversion,  or  hw 
of  another's  projjertij  ;  (,5)  Upon  advances  of  money.'' 

in  Connecticut,  similar  propositions  were  laid  down  : 

(1)  Interest  will  be  allowed,  when  there  is  an  expres.s  contract  to  pay  it;  ("2)  Such 
contract  may  be  inferred  from  usage,  special  or  general ;  (:?)  U'herethere  is  a  contrail  lo 
pay  money  on  a  day  certain,  and  the  agreement  is  broken,  interest  will  be  allowed  by  wuji 
of  damages,  as  on  notes,  ttc. ;  (4)  When  goods  are  sold,  to  he  paid  for  on  a  day  certiun. 
interest,  in  like  nuiuner,  follows;  (5)  Where  money  is  received  for  the  itse  of  another,  and 
there  is  neglect  in  not  paying  it,  interest  follows ;  ((1)  U  here  money  is  obtained  by  fraud, '\n- 
terest  is  allowed  ;  (7)  IVhere  an  account  is  liquidated  and  balance  ascertained,  interest  brginn 
to  run  ;  (8)  Where  goods  are  delivered  to  be  j)aid  for,  not  at  a  day  certain,  but  in  a  rea- 
sonable time,  and  there  is  unreasonable  delay,  iuter'-st  is  allowed;  (t))  But  where  thine 
are  current  accounts,  founded  on  mutual  dealings,  and  no  promise  to  pay  interest,  in- 
terest will  not  be  allowed.'* 

With  respect  to  the  fraudulent  detention  of  money,  the  rule  acted 
upon  as  to  interest  by  the  courts  of  America  generally  is  the  same  with 
that  which  now  prevails  in  the  English  courts  of  equity.    "  Wheje  money 


' ''  Op  the  Measure  of  Damages, '  p.  :J76. 


'Page  380. 
♦Page  380. 


rs. 


BRITISH    ARGUMENT INTKREST. 


')i')3 


w 


iu  the  (.'oiut:* 
as  a  clmptt^i 
i  lie  says: 

,•  tli.sc()liiu'(;t('il 
.  Ito  oinitti'il  ill 
illy,  ti)  usi'  tile 
it  iDi'iiKi  part  1)1 
ill'  itliice  l)y  tlif 

:  Jlr8l,  wlieit'  ii 
<>  i)a\  it.  or  i)(; 

to    jliiy  r,)!'  tile 

t,  i.s  iiii|iu<^til  t(i 
I  i.s  rei'itvi'iiililr 
»i'  tbojury. 

ti'af'ts  lopaN 
•invliml  (niijltt 
'.Jiiute  time  of 
iiitc'i'i'St  shall 
it  <!amu)t  l»t' 

niter  nunibor 


ion  hotwi'iii  till' 
,  it  may  lio  saiil 
neially  to  those 
II'  ciiiii  ts  oi'  tin: 
(■rail;,  liisposcil. 
fhe  case,  and  not 
idinf;-  (UHVi'imkc 
The  .linr.riniii 
"  the  moiitji,  (iiid 
i  sonn'tliin;4  <lis- 
!i;;;roonn'nt."  • 

's  recognized 
.'\v  York,  ill  a 


•A:  (I)  I'lion  a 

nay  arisi;  i'roiu 

lOJicji  in  wHlilicId 

'oiivcmloii  or  *(■'" 


y  it;  (2)  Such 
e  in  a  con  trad  lo 

llowotl  l>y  "'((.V 
ii  (lay  certain. 

of  another,  and 
ltd  byfrand,  in- 
d,  inierext  bi-n'mn 
but  in  a  ii'a- 
iut  where  tlieic 
)ay  interest,  in- 

le  rule  acted 
le  sameAvith 
V^he-e  mouey 


380. 
380. 


is*  receive*!  by  a  party  who  improperly  detain.s  it,  or  convert.s  it  to  his 
own  use,  ho  must  pay  interest."  (i\  378.) 

In  all  these  cases,  the  money  must  be  actually  due,  and  the  anu)unt 
liquidated,  that  is,  ascertained  and  fixed,  or  capable  of  being  a.scertaiiu'd 
by  a  mere  process  of  computation  resulting  from  known  facts,  of  which 
actual  indebtedness  is  the  legal  con.sequence.  With  respect  to  claims 
for  interest  on  nnliquidatfd  demands,  the  law  of  Great  Britain  and  of 
the  United  States  is  the  same. 

"  It  is  n  ^faoral  rule,"  says  Mr.  Scilywick,  p.  377,  "  tlmt  iiitarst  in  not  recovcrahk  on 
ntiUqniduled  dcmandu.  In  an  action  for  not  tleliveiing  teas  accordin};  to  aurceinont, 
Judge  Wasbington,  at  Nisi  I'lius,  said,  ' /(  in  not  aijrecahle  to  Iitjul  princiiilm  to  allow 
interest  on  initiquidatid  or  contented  claims  in  damagex.'  'The  rule  is  well-cstabliHlie*!,' 
says  Judge  Parker,  in  tbo  Supreme  Court  of  New  York,  'that  interest  is  not  recovera- 
ble on  ninning  or  mili(iuidated  accounts,  unless  there  is  an  agreement,  either  express 
or  implied,  to  pay  interest.'  So  in  x-Iassachusctts,  it  is  said,  that  '  interest  cannot  bo 
recovered  upon  an  open  and  running  account  for  work  and  labor,  goods  sold,  and  the 
like,  unless  there  is  some  contract  to  pay  interest,  or  some  u.sage,  as  iu  the  case  of  the 
custom  of  merchant.,,  from  which  a  contract  may  be  inferred.'  And  so  also,  iu  Texn«, 
interest  is  denied  on  an  open  account.  So,  in  an  action  on  a  policy  of  inHurnnre,  if  the 
preliminary  proofg  are  ho  ragne  that  the  claim  cannot  be  computed,  intercut  in  not  allouable." 

At  pages  385-387,  Mr.  Sedgwick  considers  another  class  of  ca.ses,  under 
the  head  of  ^^  interest,  when  given  as  damages,^  i  e.,  tbose  in  wbicli  it  is 
not  given  properly  ^^  as  inter  est, ^^  under  the  con*-^.  1  of  the  Court,  and 
"allowed  or  disallowed  upon  certain  rules  of  law;  '  l>iit  "where  it  is  to 
bo  settled  by  the  A'erdict  of  a  jury,''  and  "given  more  strictly  as  dam- 
ages." 

The  cases  in  which  this  rule  is  applied  ar'^  generally  those  iu  which 
the  property  of  the  plaintiff  has  been  wrongfully  ttken  possession  of 
by  the  d^frudant: 

This  is  generally  so  in  actions  of  tint,  as  trover  or  trospa'^H  for  taking  goods,  where 
in  I  est  is  allowed  at  the  discretion  of  the  jury.  So  in  an  action  of  trespass,  the 
Supreme  Court  of  New  York  said  :  "  The  plaintitf  ought  not  to  be  ilcprived  of  bis  prop- 
erty for  years  without  compen.sation  for  the  loss  of  tbo  use  6f  it ;  ami  tbo  jury  bad  a 
discretion  to  allow  interest  in  this  case  as  damages.  It  has  been  allowed  iu  action.s  of 
trover,  and  the  same  rule  applies  to  trespass  when  brought  for  the  rccorcry  of  property.' 
So  in  Kentucky,  iu  case  of  a  fraudulent  refusal  to  convey  land;  and  so«leclared  also  in 
North  Carolina  in  cases  of  trover  and  trespass.' 

It  is  to  be  observed  that  tlitf,  action  of  "trover"  here  mentioned  is  a 
form  of  remedy  under  American  and  English  law  for  the  conversion 
by  a  defendant  to  his  own  use  of  the  plaintiti's  property ;  and  the  action 
of  "  trespass"  is  another  form  of  remedy,  under  the  same  laws,  when  a 
defendant  has  intruded,  without  right,  upon  the  property  of  the  plain- 
tiff. In  all  theca.ses  here  contemplated  the  liability  to  be  mulcted  in  in- 
terest as  damages  arises  out  of  the  exclusion  of  the  owner  from  the  enjoy- 
ment of  his  own  property,  by  the  direct  act  of  the  person  from  whom 
the  damages  are  recovered,  and  who,  by  reason  thereof,  haa  himself 
ei.joyed  (or,  but  for  his  own  willful  default,  might  have  enjoyed)  that 
benefit  of  the  property  from  which  the  owner  has  been  so  excluded. 
The  principle  on  which  a  jury  ought  to  proceed  in  giving  or  not  giving 
interest  by  way  of  damages  was  thus  explained  by  the  Court  of  New 
York  :  "In  two  actions  against  a  master  of  a  ship  for  non-delivery  of 
goods,  it  was  held  iu  l>ew  York  that  the  jury  might  give  damages  (/'  the 
conduct  of  the  defendant  teas  improper;  i.  e.,  ichere  fraud  or  gross  miscon- 
(luct'-could  he  imputed  to  him;  but  it  appearing  that  sue  a  was  not  the 
fact,  it  was  not  allowed."  ^ 

The  principle  thus  thus  laid  down  is  in  strict  conformity  with  that 


554 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


f  .    < 


m 


;ji 


stated  iu  another  American  treatise  of  reputation  upon  the  "Law  of 
Negligence,"  by  Messrs.  Shearman  and  Kedfield : 

^  600.  Exemplary,  vliulictivc,  or  puuitivo  damages  can  never  he  recovered  in  ac- 
tions upon  anything  less  than  groa8  negligence.  Of  this  there  can  V)o  no  doubt. 
*  *  *  It  is  often  said  that  exemplary  damages  may  be  awarded  for  grtiss 
negligence.  But  it  should  be  distinctly  understood  that  gross  negligence  meana  such 
entire  want  of  care  as  to  raise  a  presumption  that  the  person  in  fault  is  conscious  of  the  prob- 
able consequences  of  7tn  carelessness,  and  is  indifferent,  or  worse,  to  the  danger  of  injury  to 
the  persons  or  property  jf  others;  and  such  appears  to  us  to  be  the  construction  put  tipon 
these  words  by  the  Courts,  iu  the  cases  referred  to.  It  is  only  in  cases  of  such  7'ecklvssness 
that,  iu  our  opinion,  exemplary  damages  should  be  allowed. 

7.  Let  us  now,  with  these  principles  of  general  jurisprudence  in  view, 
examine  the  circumstances  of  the  present  case,  in  order  to  see  whether 
they  present  any  just  and  equitable  grounds  or  any  sufilicient  materials 
on  which  interest  by  way  of  damages  can  be  included  by  the  Tribunal 
in  any  gross  sum  which  they  may  think  i)rpper  to  award  against  Great 
Britain. 

8.  In  the  first  place,  this  is  not  the  case  of  a  detention  or  delay  in  the 
payment  of  a  liquidated  debt  or  ascertained  liability  payable  at  a  period 
which  has  elapsed ;  there  was,  iu  fact,  no  liability  at  all  independently 
of  the  exercise  of  the  judgment  of  Arbitrators  upon  a  very  novel,  en- 
tangled, and  difficult  state  of  facts  and  public  law.  The  claims  made 
by  the  United  States  extended  to  many  matters  for  which  the  Arbi- 
trators have  found  Great  Britain  not  responsible.  The  decisions  of  the 
Arbitrators  against  Great  Britain  have  been  mainly  founded  upon  the 
conventional  rules  of  judgment  first  introduced  as  between  the  two 
nations  by  the  Treaty  of  1871,  though  agreed  by  that  Treaty  to  be 
retrospectively  applied  j  and  there  are,  down  to  this  moment,  no  means 
of  ascertaining,  by  any  method  of  computation  whatever,  the  actual 
amount  of  the  liability  jiroperly  resulting  from  those  decisions. 

9.  The  observations  of  Professor  Bluntschli,  in  his  paper  on  these 

claims,  ("  Eevue  de  Droit  International,"  1870,  p.  474,)  are  material  iu 

this  respect : 

"A  en  croire,"  he  says,  "plusieurs  orateurs  et  dcrivains  amdricaius,  il  irait  do  soi 
que  le  gouvernement  de  la  Grande-Bretagiie  sorait  oblig(5  de  d^dommager  au  moins 
les  particuliers,  dont  la  propriety  aurait  6t6  dotruite  par  I'Alabania,  (ainsi  que  par  la 
Florida,  ou  d'autres  corsaires  susdits.)  A  mou  avie,  ce  point  est  loin  d'«Ure  entiere- 
ment  Evident ,  et  I'ou  pourrait  singuliferement  se  tromper,  en  se  fiant  trop  au  succos 
rdservd  ii  ces  r6clamations  privdes  devant  uu  tribunal  .arbitral.  Si  Tunion  ne  prend 
pas,  comme  Ctat,  ces  reclamations  priv6es  sous  sa  protection,  et  si  elle  ue  ftiit  pas  con- 
sister  dans  leur  «5quitable  ap.aisemeut  la  satisfaction  que  les  fitats-Unis  out  droit 
uC  rdclamer  de  la  Grande-Bretagne,  dans  ce  cas,  les  particuliers  intdressds  n'out  alt- 
solument  aucune  perspective  de  dddommagement.  D'apres  les  regies  du  droit  priv<^. 
ordinaire,  leurs  pretentions  seraient  tout-k-fait  vaiues.  NuUe  part  ils  ne  trouve- 
raient  uu  juge  qui  condamnerait  le  gouvernement  anglais  h  payer  une  indemnity. 
*  *  *  D'aprfes  les  observ.ations  qui  precedent,  tout  le  debat  se  resume,  non 
pas  en  uu  litige  entre  des  particuliers  auxquels  la  guerre  a  cause  des  pertes,  et  I'etat 
de  la  Grande-Bretagne  que  I'on  veut  reudre  respousable  de  celles-ci,  niais  en  un  litige 
entre  la  federation  des  l5tats-Unis  d'un  cAte  et  la  Grande-Bretagne.  Et  ce  qui  fait 
Vobjet  du  litige,  ce  n'est  pas  un  dommage  materiel,  mais  la  non-observation  des  devoirs  inter- 
nationaux  de  la  part  d'un  etat  ami  et  neutrc. 

As  there  was  no  liability  wljich  could  properly  be  called  a  debt,  or  in 
respect  of  which  any  interest  could  be  due  upon  juridical  principles,  so 
(on  the  other  hand)  there  was  no  iiroporty  belonging  to  the  United 
States  or  their  citizens,  of  which  possession  was  at  any  time  taken,  or 
any  enjoyment  whatever  had,  by  Great  Britain,  her  officers,  or  her  ati- 
zens,  or  by  any  persons  under  British  protection,  availing  themselves  of 
that  protection  to  maintain  such  possession  or  enjoyment.  The  words 
of  Professor  Bliintschli,  already  quoted  iu  a  former  argument,  are  here 
again  material : 


BRITISH    ARGUMENT INTEREST. 


555 


ilay  in  the 
at  a  period 
jpeudentlj' 

novel,  en- 
aims  made 

the  Arbi- 
ious  of  the 
I  upon  the 
n  the  two 
■eaty  to  be 
;,  no  means 
the  actual 


I  irjiit  do  soi 
»er  au  nioins 
wi  que  par  la 
.'tUre  enticre- 
op  au  8UCCCS 
ion  ne  prend 
1  fiiit  pas  con- 
nis  out  droit 
8s68  u'out  al>- 
u  droit  priv<5 
Is  ne  trouve- 
)  indemnit*^. 
r<^8ume,  non 
rtes,  et  I'^tat 
s  en  u«  litige 
't  ce   qui  /<"' 
devoirs  inter- 

debt,  or  in 
inciples,  so 
the  United 
e  taken,  01- 
or  her  6iti- 
111  selves  of 
The  words 
it,  are  here 


II  ue  faut,  d'ailleurs,  pas  perdre  de  vae  que  tous  ces  effcts  ddsastrfiux  sout  eu 'premier 
lieu  imputables,  iiou  pas  au  gouveruoiueiit  anj^lais,  luais  aux  croiseurs  eux-nieuies. 
Personne  u'accusera  le  gouverueuient  anglais  d'avoir  donn6  mission  de  dt^itruiro  les 
uavires  de  commerce  amdricains,  ou  d'avoir,  par  ses  agissements,  cutravd  ou  endom- 
mag€  la  marine  am6ricaiue.  Cc  que  Ton  pent  lui  rcprocher  a  bon  droit,  ^eu  supposant 
que  les  fails  cites  i)lu8  haut  doivent  «Hre  considers  comme  avouds  ou  prouvds,)  ce  u'est 
pas  un  fait,  mais  uue  omission  contre  le  droit.  Sa  faute  ue  consiste  pas  il  avoir  <5quip6  et 
appari'illd  les  corsaires,  mais  i\  n^avoir  pas  empCehe  leur  atmenient  et  leur  sortie  de  sou 
territoire  neutie.  Jais  cette/au/e  n'a  qu'uu  rapport  indirect,  et  nullement  uu  rapport 
direct,  avec  les  ddprddatious  rtSellemeut  commises  par  les  croiseurs. ' 

Great  Britain  did  not  make  or  authorize  the  captures  by  which  the 
citizens  of  the  United  States  lost  their  property;  they  were  never 
brought  within  her  territory,  so  as  to  make  her  answerable  for  them  on 
the  principle  of  reception;  nor  had  she,  or  her  citizens,  at  any  time, 
any  profit  or  benefit  whatever,  or  any  possibility  of  deriving  profit  or 
benefit  from  any  of  them.  Nor  is  it  supposed  to  be  possible  that  the 
Tribunal  can  be  led  to  attribute  any  want  of  diligence,  with  which,  in 
certain  cases.  Great  Britain  may  in  their  view  be  chargeable,  to  any 
such  motives  or  causes  as,  according  to  the  analogy  of  privutc  jurispru- 
dence, would  justify  a  jury  or  an  Arbitrator  in  giving  vindictive  or  penal 
damages.  Every  ground,  therefore,  on  which  (according  to  juridical 
principles)  interest  could  be  awarded  as  an  element  of  damages,  is 
wanting  here. 

11.  Furthermore,  independently  of  the  facts  affecting  the  nature  and 
amount  of  the  claims  themselves,  which  will  be  hereafter  referred  to, 
there  are  other  special  considerations  which,  in  the  present  case,  appear 
to  make  it  the  duty  of  the  Arbitrators,  if  they  find  Great  Britain  re- 
sponsible at  all  in  damages  to  the  United  States,  to  mitigate,  in  the  ex- 
ercise of  a  reasonable  discretion,  the  amount  of  those  damages ;  and 
certainly  not  to  intiame  or  aggravate  them  by  the  addition  of  penal 
interest. 

If  the  following  arguments  in  the  BritivSh  Counter  Case  (p.  132)  are 
held  iusufticient  to  exonerate  Great  Britain  from  all  liability,  they  must 
at  least  be  admitted  to  be  of  great  weight  and  pertinence,  as  against 
any  attempt  to  push  the  doctrine  of  compensation  and  indemnity,  in 
this  case,  to  an  extreme  length  : 

The  whole  responsibility  of  the  acts  which  caused  these  losses,  belonRed,  primarily, 
to  the  Confederate  States  ;  they  wore  all  done  by  them,  beyond  the  jurisdiction  and 
control  of  Great  Britain;  wrong  was  done  by  them  to  Groat  Britain,  in  the  very  in- 
fraction of  her  laws,  which  constitutes  the  foundation  of  the  present  claims.  But  from 
them,  no  pecuniary  reparation  whatever  for  these  losses  has  been,  or  is  now,  exacted 
by  the  conquerors  ;  what  has  been  comloned  to  the  principals,  is  sought  to  be  exacted 
from  those  who  were,  at  the  most,  i)assively  accessory  to  those  losses,  through  a  wroug 
done  to  them,  and  against  their  will.  The  very  States  which  did  the  wrong  are  part 
of  the  United  States,  who  now  8eel<  to  tlirow  the  pecuniary  liability  for  tuat  wrong 
solely  and  exclusively  upon  Great  Britain,  herself  (as  far,  at  least,  as  they  are  con- 
cerned) the  injured  party.  They  have  !)eeu  re-admitted  to  their  former  full  participa- 
tion in  the  rights  and  privileges  of  the  Federal  Constitution  ;  they  send  their  members 
to  the  Senate  and  the  House  of  Kejiresentatives  ;  tht^y  take  part  in  the  election  of  the 
President ;  they  would  share  in  any  benetit  which  the  jmblic  reve.iue  of  the  United 
States  might  derive  from  whatever  might  be  awardi^d  by  the  Arbitrators  to  be  paid  by 
Great  Britain.  On  what  principle  of  international  equity  can  a  Federal  Commonwealth, 
80  composed,  seek  to  throw  u])<>n  a  neutral,  assumed  at  the  most  to  have  been  guilty 
of  some  degree  of  negligence,  liabilities  which  belonged  in  the  first  degree  to  its  own 
citizens,  with  whom  it  has  now  re-entered  into  relations  of  jiolitical  unity,  and  fnmi 
which  it  has  wholly  absolved  those  citizens  ? 

The  American  U  lion  is  not  a  single  Bopublic,  but  is  a  Federation  of 
States.  The  eleven  States  which  joined  the  Southern  Confederacy  are 
also  now  joining  in  the  present  claims.    Upon  ordinary  principles  of 


I 


'  Page  47.'5.    The  italics  in  .tbis  passage  are  in  the  original  text. 


5j6 


SUPPLEMENTARY    ARGUMENTS   AND    STATEMENTS. 


m 


I 


jnstice,  if  Great  Britain  is  held  responsible  for  those  claims,  she  would 
herself  have  a  claim  for  indemnity  against  those  eleven  States;  which 
in  their  external  relations  toward  herself  and  other  countries,  are  rep- 
resented by  the  Federal  Government.  If  everything  has  been  condoned 
to  them  by  the  Federal  Government,  and  if  their  relations  to  th?t  Gov- 
ernment preclude  Great  Britain  from  having  recourse  to  them  for  the 
indemnity  which  would  otherwise  be  justly  due  to  her,  it  is  surely  im- 
possible to  conceive  a  case  in  which  there  would  be  less  justification  for  a 
discretionary  and  penal  augmentation  of  damages,  such  as  an  allowance 
in  respect  of  interest,  in  a  proceeding  for  unliquidated  damages,  always 
is. 

Another  argument,  arising  from  the  peculiar  circumstances  of  the 
present  case,  and  which  has  also  a  strong  bearing  in  favor  of  a  reason- 
able modification  of  the  liability  of  Great  Britain,  and,  at  all  events, 
against  any  aggravation  of  that  liability  by  the  addition  of  interest  as 
an  element  of  damages,  is  thus  stated  in  tiie  British  Counter  Case,  (p. 
132:) 

When  any  vessels,  whether  procraed  from  Great  Britain,  or  otherwise  obtained,  had 
"become  Confederate  ships  of  war,  the  duty  of  repelling  their  hostile  ])roceediugs  by  all 
proper  and  efficient  means  (like  the  rest  of  the  operations  necessary  for  the  conduct  of 
the  war)  devolved  exclusively  upon  the  United  States,  and  not  upon  the  British  Gov- 
ernment. Over  the  measures  taken  by  the  United  States  for  tiiat  p'lrpose,  Great 
Britain  could  exercise  no  influence  or  control ;  nor  can  she  be  held  responsible  in  any 
degree  for  their  delay,  their  neglect,  or  their  insniilieiency.  Any  want  of  skill  or  success, 
even  in  the  operations  by  land,  would  have  the  effect  of  prolonging  the  period  during 
which  cruises  of  this  nature  could  be  continued.  All  losse'!,  which  might  have,  been 
prevented  by  the  use  of  more  skillful  or  more  ouergetic  means,  ought  justly  to  bo 
ascribed  to  a  want  of  due  diligence  on  the  part  of  the  Ciovevument  of  the  United  States, 
and  not  to  any  error,  at  any  earlier  stage,  of  the  British  Government.  Caii^a  proj-ima. 
lion  nmot'i  sjiectatiii: 

In  support  of  this  reasoning,  various  facts  are  referred  to,  at  pages 
138-140  of  the  same  Counter  Ca.se,  which  .show  that  numerous  opportu- 
nities of  arresting  the  progress  of  the  Confederate  cruisers  were  actually 
lost,  through  the  remissness  or  fault  (according  to  the  judgment  of  their 
own  official  superiors)  of  the  officers  wlio  ought  to  have  performed  that 
duty;  and  that  the  means  employed  by  the  Government  of  the  United 
States  for  that  object  were  on  the  whole  inadequate  for  its  energetic  ac- 
complishment, ft  would  surely  be  of  very  dangerous  example  to  hold 
that  a  belligerent  power  is  at  liberty  (upon  such  an  occurrence,  e.  g.,  as 
the  enlistment  of  forty  men  of  the  Shenandoah  on  the  night  of  her  leav- 
ing Melbourne)  to  leave  a  vessel  which  has  abused  the  hospitality  of  a 
neutral  State,  to  harass  the  commerce  of  its  citizens  without  the  use  of 
efficient  means  of  prevention ;  relying  upon  an  eventual  pecuniary  claim 
against  the  neutral  State  for  the  value  of  all  the  subsequent  captures  of 
that  vessel,  w  itli  interest  to  the  day  of  payment. 

12.  Even  if  it  were  possible  that  interest  could  be  held  due,  on  ac- 
count of  delay  of  payment,  in  a  case  of  unliquidated  and  unascertained 
claims  of  this  nature,  between  nation  and  nation,  it  is  obvious  that  the 
United  States,  and  not  Great  Britain,  are  exclusively  responsible  for  so 
much,  at  least,  of  the  delay,  as  has  been  due  to  the  rejection  by  the 
Senate  of  the  United  States  of  the  Convention  signed  by  Mr.  Eeverdy 
Johnson  and  the  Earl  of  Clarendon,  on  the  14th  January,  18G9.  (British 
Appendix,  vol.  iv,  part  9,  pp.  3(5-38.)  That  Convention  provided  for  a 
reference  to  arbitration  of  all  the  claims  of  American  citizens,  arising 
out  of  the  acts  of  the  several  vessels  to  which  the  present  controversy 
relates. 

It  was  the  result  of  a  Careful  negotiation,  expressly  authorized  from 
the  beginning  to  the  end  by  the  Government  of  the  United  States.    Its 


BRITISH    ARGUMENT INTEREST. 


557 


form  was  several  times  altered  to  meet  suggestions  proceeding  from  that 
Government;  and  no  such  suggestion  was  made,  before  the  final  signa- 
ture, which  was  not  met  by  a  practical  concession  on  the  part  of  Great 
Britain.  If  that  Convention  had  been  ratified  in  18G9,  a  settlement  of 
all  these  claims  would  have  taken  place  either  three  or,  at  least,  two 
years  since.  It  was,  however,  rejected  by  the  Senate  of  the  United  States 
without  so  much  as  the  communication,  at  the  time,  of  any  reason  or 
explanation  whatever  to  the  British  Government.  (British  Appendix,  vol. 
iv,  part  9,  page  10,  adjinem.)  No  reason  or  explanation  has  ever  been 
offered  which  can  alter  the  significance  of  this  fact,  or  make  it  reconcil- 
able with  any  conceivable  view  of  justice,  that,  as  against  a  Govern- 
ment which  has  never  derived  any  profit  or  benefit,  either  directly  or 
through  its  citizens,  from  any  of  the  captures  in  question,  the  United 
States  should  claim  interest  for  a  delay  due  only  to  themselves.  Great 
Britain,  from  the  commencement  of  the  negotiations  between  Lord 
Stanley  and  Mr.  Keverdy  Johnson  in  18G6,  was  always  willing  that  these 
claims  should  be  settled  by  arbitration ;  the  difficulty  (which  appears  to 
have  originated  in  the  suggestion  by  Mr.  Sumner  of  thosc^  indirect  claims, 
which  are  now  excluded  from  the  consideration  of  the  Tribunal)  was  on 
the  part  of  the  United  States  alone.  Can  it  be  said  that,  if  the  delay, 
so  caused,  had  lasted  for  twenty  or  for  ten  years,  a  claim  by  the  United 
States  for  interest  during  that  period  could  still  have  been  maintained? 
If  not,  it  cannot  be  maintained  now ;  whether  the  delay  is  twenty  years 
or  two  years,  can  make  no  difference  in  principle. 

13.  All  the  foregoing  reasons  belong  to  the  general  equity  of  the  case, 
and  are  independent  of  all  the  objections  to  the  allowance  of  interest  an 
an  element  of  damages  or  compensation,  which  arise  out  of  the  particu- 
lars of  the  claims,  and  the  impossibility  of  ascertaining  or  defining  theui 
before  this  Tribunal. 

14.  The  substantial  claims  (setting  aside  that  of  the  United  States  for 
the  alleged  expenses  of  pursuit  and  capture)  are  those  of  the  owners  of 
ships  and  other  property  destroyed,  and  those  of  the  insurance  com- 
panies with  whom  the  property  lost  was  insured.  The  amount  of  both 
these  classes  of  claims  is  stated  in  dollars  of  the  currency  of  the  United 
States  at  the  respective  times  when  the  losses  were  sustained  and  the 
insurances  paid.  The  value  of  the  dollar  currency  was,  during  that 
whole  period,  enormously  depreciated  by  reason  of  the  war  and  of  the 
suspension  of  specie  payments  in  the  United  States.  Its  exchangeable 
value,  as  compared  with  the  exchangeable  value  of  the  dollar  in  gold, 
during  the  period  of  specie  payments  before  the  war  and  also  at  the 
present  time,  was  as  5,014  to  7,744,  or,  in  round  numbers,  as  8  to  11.' 

All  values  of  property  computed  in  dollars  of  the  forced  paper  cur- 
rency, during  that  period,  stood  at  proportionally  higher  figures  than 
they  would  have  done  during  the  time  of  specie  payments.  The  pay- 
ment of  all  these  claims,*  so  stated  at  their  values  in  a  forced  paper  cur- 
rency, is  now  sought  to  be  recovered  against  Great  Britain  at  the 
nominal  value  of  the  same  number  of  dollars  converted  into  gold  at  the 
present  rate  of  exchange ;  thus  giving  to  every  claimant  a  direct  gain  of 
above  27  per  cent,  by  the  difference  only  between  the  value  of  the  dollar 
in  which  the  losses  were  estimated,  and  the  value  of  the  dollar  in  which 
the  payment  is  asked  to  be  made.  This  gain  is  alone  equivalent  to  the 
actual  addition  of  interest,  at  the  rate  of  G  per  cent,  per  annum,  for  four 
years  and  a  half  upon  every  claim. 

15.  With  respect  to  the  insurance  companies,  it  must  be  remembered 

'  British  Summary,  p.68. 

'Tlio  exccptiona  are  few,  and  of  no  importance  to  the  argument. 


558 


SUrPLEMENTARY    ARGUMENTS   AND    STATEMENTS. 


!  '1 


that,  as  against  the  losses  which  they  paid,  they  received  the  benefit  of 
the  enormous  war-premiums  which  ruled  at  that  time;  and  that  these 
were  the  risks  against  which  they  indemnified  themselves  (and,  it  can- 
not be  doubted,  so  as  make  their  business  profitable  upon  the  whole) 
by  those  extraordinary  premiums.  Would  It  be  equitable  now  to  re- 
imburse them,  not  only  the  amount  of  all  these  losses,  but  interest 
thereon,  without  taking  into  account  any  part  of  the  profits  which  they 
so  received  1 

10.  These  remarks  would  hold  good  if  an  exact  valuation  of  the  claims 
were  x'ossible ;  but,  before  this  Tribunal,  neither  an  exact  valuation  of 
any  part  of  these  claims,  nor  any  approximation  to  such  a  valuation,  is 
possible.  This  consideration  alone  ought  to  be  decisive  against  the 
demand  of  interest,  as  an  element  of  damages,  in  any  gross  sum  to  be 
awarded  by  the  Tribunal. 

When  tliis  is  held  to  be  admissible  in  private  jurisprudence,  the  esti- 
mate or  computation  of  the  amount  to  be  added  for  interest  is  always 
founded  upon  some  appropriate  evidence,  by  which  the  Jury  or  the 
Court  is  enabled  to  fix  a  definite  sum  as  the  value  of  the  principal  sub- 
ject for  which  compensation  is  due.  Before  interest  can  be  computed, 
whether  as  a  legal  incident  of  a  liquidated  debt,  or  as  an  element  in 
damages  previously  unliquidated,  the  principal  sum  must  be  known ; 
and  this,  not  by  conjecture,  not  by  accepting,  without  proof  in  detail, 
the  amount  at  which  the  interested  party  may  choose  to  state  his  own 
claim,  (almost  always  excessive  and  exorbitant,  and,  as  a  general  rule, 
purposely  so  overstated,  in  order  to  leave  a  very  wide  margin  for  a 
profit  after  all  probable  deductions,)  nor  by  any  merely  arbitrary  modi- 
fication of  that  amount,  but  by  such  vouchers  and  proofs  as,  after  the 
opposite  party  has  had  the  opportunity  of  seeing  and  checking  them, 
are  deemed  satisfactory.  Where  such  vouchers  and  proofs  are  absent, 
or  cannot  be  satisfactorily  *ested,  all  foundation  for  an  allowance  of 
interest,  as  an  element  of  damages,  necessarily  fails. 

17.  In  the  present  case,  not  only  is  it  altogether  impossible  to  ascer- 
tain, either  accurately  or  proximately,  any  sum  which  can  be  taken  by 
the  Tribunal  as  representing  the  principal  amount  of  the  losses,  for 
which  Great  Britain  ought  to  be  held  responsible ;  but  the  figures 
which  have  been  laid  before  the  Tribunal  on  both  sides  show  in  a  very 
significant  manner  what  great  injusVice  m  ght  be  inadvertently  done, 
and  how  largely  any  just  measure  of  compensation  or  indemnity  might 
be  exceeded,  if  the  Tribunal  were  either  to  assume  some  amount,  arbi- 
trarily fixed,  as  representing  the  principal  of  those  losses,  and  then  to 
add  interest  on  that  amount ;  or  were,  without  any  such  attempt  at 
exactness,  to  swell,  by  some  undefined  and  arbitrary  addition  under  the 
notion  of  providing  for  interest,  an  award  for  a  gross  sum,  founded  on 
no  distinct  elements  admitting  of  any  computation.  It  does  not  re- 
quire much  attention  to  the  particulars  of  the  claims  to  see  that  they 
have  been  intentionally  so  stated,  as  to  leave  not  only  a  wide  margin 
for  all  those  deductions,  which  the  criticism  of  Great  Britain  might 
prove  to  be  necessary,  but  ample  room,  after  every  such  deduction  has 
been  made,  for  a  large  and  full  compensation  and  indemnity,  without 
any  further  addition  whatever.  The  British  criticisms  cannot  and  do 
not  attempt  more  than  to  cut  off  manifest  exaggerations  of  those  claims, 
either  by  demonstrating  the  inadmissibility  in  principle  of  some  of  them, 
{€.  </.,  the  double  claims,  and  the  prospective  earnings,)  or  by  showing 
that  others  (e.  g.,  the  claim  for  gross  freights)  must,  on  principl'*,  be  re- 
duced by  manifestly  necessary  deductions,  or  by  appealing  to  the  known 
and  ascertained  values  of  shipping,  &c.,  of  the  same  classes  before  the 


BRITISH    ARGUMENT INTEREST, 


559 


war,  as  a  stautlard  of  coinparisou  to  which  estimates  of  losses,  mani- 
festly excessive,  may  be  referred.  But  when  the  fullest  eftect  has  been 
given  to  all  these  criticisms,  the  remaining  claims  continue  unvouched 
and  untested,  under  circumstances  in  which  every  really  doubtful  and 
uncertain  question  of  actual  value  is  practically  taken  for  granted,  even 
by  the  reduced  British  estimate,  in  the  claimant's  favor. 

18.  In  illustration  and  proof  of  th-j  preceding  observations,  the  fol- 
lowing important  extract  from  the  Report  of  Messrs.  Cohen  and  Young, 
appended  to  the  British  Argument  or  Summary,  (pp.  46-47,)  containing 
matters,  not  of  opinion,  but  of  fact,  which  the  Arbitrators  may  verify  for 
themselves  merely  by  referring  to  the  several  documents  in  which  the 
claims  of  the  United  States  have  been  at  diii'erent  times  stated,  is  here 
subjoined : 

"It  will  be  useful,"  they  say,  "to  make  some  observatious  which  present  themselves 
on  comparing,  w  ith  the  '  Revised  Statement,'  the  original  list  of  claims  which  was  sent 
by  Mr.  Seward  to  Mr..  Adams  in  August,  1866,  and  also  the  extension  of  this,  as  pre- 
sented by  the  President  to  the  House  of  Representatives  in  April,  1869,  and  which  are 
to  be  found  in  the  fourth  volume  of  '  The  Correspondence  concerning  Claims  against 
Great  Britain  transmitted  to  the  Senate  of  the  United  States.' 

"  These  lists  of  claims  not  only  strongly  conlirm  the  opinion  wo  expressed  in  our 
First  Report,  that  the  estimate  we  there  made  of  the  value  of  the  vessels  was  prob.ably 
a  very  liberal  one,  but  also  show  in  a  remarkable  manner  how,  since  the  year  1866, 
the  claimants  have  in  most  cases  enormously  increased  their  estimate  of  the  losses  al- 
leged to  have  been  sustained  by  them. 

"  We  will  cite  some  of  the  more  striking  instances— calling  the  list  of  claims  sent  to 
Mr.  Adams  the  '  Original  List,'  the  List  luesented  to  the  House  of  Representatives  the 
'  United  States  Amended  List,'  the  Statement,'  on  which  we  have  already  reported,  the 
'Former  Statement,'  and  the  Revised  List  of  Claims^  on  which  we  are  now  reporting 
the  *  Revised-Statement.' 

"  The  Alert, — The  claim  as  stated  in  the  '  Original  List '  amounted  to  $57,859 ;  in  the 
'  Revised  Statement'  (p.  1)  it  amounts  to  $202,726.  In  the  '  Original  List '  there  was  a, 
claim  of  $30,000  for  '  interruption  of  voyage  ;  '  but  now,  in  addition  to  that  amount,, 
there  is  claimed  a  sum  of  $144,869  for  ' prospective  earnings,^ 

"  The  Anna  Schmidt. — This  vessel  was  in  the  '  Original  List '  valued  at  $30,000,  which 
is  somewhat  less  than  the  average  valuation  we  have  allowed  in  proportion  to  her  ton- 
nage, but  in  the  '  Revised  Statement '  (p.  13)  the  sum  claimed  in  respect  of  the  venael  is 
double' that  amount. 

"  The  Golden  Eagle. — In  the  '  Original  List '  the  owners  claimed  for  the  vessel  $36,000, 
and  for /rei(//t<  $26,000.  Our  average  estimate  in  proportion  to  her  tonnage  was  about 
§45,000.  In  the  '  Revised  Statement' (p.  40)  the  owners  claim  $86,000  for  vessel  and 
freight,  thus  increasing  their  claim  by  nearly  50  per  cent. 

"  Tlie  Highlander. — She  was  a  vessel  of  1,049  tons,  and  was  in  ballast.  In  the  '  Original . 
List'  two  insurance  companies  a^lvanced  claims  for  insurances  to  the  extent  of  $30,000, 
which  was  probably  about  the  v-alue  of  the  vessel ;  but  in  the  '  Revised  Statement '  (p. 
46)  the  owners  put  forward  an  additional  claim  for  the  ship  to  the  extent  of  $84,000 
Tl;is  claim  is,  however,  far  less  extravagant  than  the  claim  for  freight,  which  in  the 
'Original  List' amounted  to  $6,000;  whereas  in  the  'Revised  Statement'  it  exceeds 
808,000,  and  is  advanced  without  any  deduction  whatever,  although  the  ship  was  in 
ballast  at  the  time  of  her  capture.  It  will  be  found  that  at  pages  6  and  27  of  our  First 
Report  wo  have  specially  coir; iion ted  on  the  character  and  extent  of  the  extraordinary 
(l«m,'- '^°  put  forward  in  resitect  of  this  vessel. 

"  !Jic  orean  Hover. — In  the  'Original  List 'the  owners  claimed  $10,400  for  value  of 
nhip,  loss  of  oil  on  board,  and  damages  for  breaking  up  oj  voyage.  The  claims  now  advanced 
in  the  '  Revised  Statement '  (  p.  68)  in  respect  of  the  same  losses  exceed  $193,000,  the 
ilifTerenco  between  the  original  claim  and  the  more  recent  ono  being  mtule  up  entirely 
of  '  doiiblii  claims  for  single  losses.^ 

"  The  Kate  Cory.~ln  the  '  Original  List'  the  owners  claimed  $27,800  for  the  value  of 
the  brig,  outfit,  and  oil  on  board,  and  there  was  also  a  claim  of  $1,820  frr  the  value  of 
'  reasonable  prospective  catch  of  oil.'  In  the  '  Revised  Statement '  (p.  51)  the  amounts 
insured  have,  as  usual,  been  added  to  the  claims  by  the  owners,  and  there  has  been  in- 
serted a  claim  of  $19,293  for  loss  o{  prospective  catch,  so  that  the  original  claim  for 
¥w^9,(!20  has  grown  to  $56,474. 

"  The  Lafayette  No.  2. — In  the  '  Original  List '  the  owners  valued  the  ship  and  outfit 


'  Presented  with  the  American  Case,  on  December  15,  1871. 
2  Presented  with  the  American  Counter  Case,  on  April  15,  1872. 


560 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


at  $24,000,  which  is  less  tlian  our  average  valuation  according  to  her  tonnage  •  aud 
the  secured  earnings  at  1810,475 ;  but  in  the  '  Revised  Statement '  (p.  .'j.'))  the  claim  put 
forward  in  respect  of  ship  and  outfit  and  secured  earnings  is  more  than  $89,000  ; 
prospective  earnings,  which  were  iu  the  '  Original  List '  valued  at  $33,446,  an 


The  original  claim  for  $69,471 


put 

and  the 

are  now  es- 

has  grown  to 


timated  ut  a  sum  exceeding  $.'>0,000 
$141,858. 

"  The  BocUngham. — The  claim  in  the  '  Original  List '  amounted  to  $105,000,  whereas 
the  claim  in  the  '  Revised  Statement '  (p.  74)  exceeds  $225,000.  This  is  also  one  of  the 
vessels  which  we  selected  in  our  First  Report  (page  23)  as  a  striking  example  of  the 
exorbitant  nature  of  sonje  of  the  claims.  There  can  be  no  doubt  that  the  original 
claim  was  very  extravagant,  but  in  the  '  Revised  Statement '  it  has  been  doubled  by 
improperly  adding  the  insurances  to  the  alleged  values. 

The  Union  Jack. — Iu  the  "  Original  List  "  it  is  stated  that  G.  Potter,  after  deducting 
the  amount  received  from  the  Atlantic  Insurance  Company,  claims  the  sum  of  $7,584  • 
but  in  the  "  Revised  Statement "  (p.  Ill)  he  claims  the  sum  of  $34,526,  without  making 
any  deduction  for  insurances,  although  the  insurance  companies  at  the  same  time  claim 
$32,014  iu  respect  of  the  amount  insured  by  them  ;  and  it  therefore  clearly  follows  that 
a  sura,  at  any  rate  exceeding  $26,000,  is  claimed  twice  over. 

ITie  Catherine, — In  the  "Original  List"  the  owners  claimed  about  $45,000  {or  vesseU 
and  secured  earnings,  but  made  no  claim  iu  respect  of  prospective  earnings.  Now,  in  the 
"  Revised  Statement,"  (p.  229,)  there  is  a  claim  put  forward  of  $35,329  for  loss  of  vessel 
and  cargo,  over  and  above  $31,676,  the  .alleged  amount  of  insurances  by  the  owners, 
which  is  also  .at  the  same  time  claimed  by  the  insurance  company.  In  addition  to  this 
there  is  a  claim  for  prospective  earnings  exceeding  $19,600,  so  that  the  original  claim  of 
$45,805  has  now  grown  to  the  enormous  sum  of  $272,108, 

The  Favourite. — She  was  a  bark  of  393  tons.  In  the  "Original  List"  the  Atlantic 
Insurance  Company,  as  insurers  and  assignees  of  the  owners,  claimed  for  loss  on  vessel 
and  outfit  $40,000,  which  there  can  be  little  doubt  w.as  the  full  value.  In  the  "Revised 
Statement"  (p.  240)  the  claims  in  respect  of  the  vessel  and  outfit  amount  altogether  to 
$110,000.  The  master,  iu  the  " Original  List,"  claimed  $1,498  for  the  loss  of  his  effects; 
but  now  he  claims  for  the  loss  of  his  personal  property,  $2,239,  aud  for  loss  of  interest  in 
oil  and  hone,  $2,709. 

The  Isaac  Howland.— In  the  "Original  List"  the  claim  for  prosjjective  earnings  was 
$53,075,  but  in  the  "  Revised  Statement "  (p.  247)  it  has  grown  to  nearly  four  times  that 
sum,  namely,  to  $196,158.  Moreover,  in  the  "  Original  List,"  the  owners  claimed  $65,000 
tor  h\u])  and  outtit,  subject  to  abatement  for  insurance;  whereas,  in  the  "  Revised  State- 
ment," they  claim  the  same  sum,  but  protest  against  any  diminution  of  claim  hy  reason  of 
insurance  obtained  by  them,  although  the  insurance  companies  claim  at  the  p.ame  time  the 
whole  amount  insured  by  them. 

The  General  Williams. — In  the  "  Original  List "  the  owners  claimed  $40,503  as  dam- 
ages by  the  destruction  of  the  vessel,  over  aud  above  $44,673,  the  amount  of  insurauccs 
received  by  them.  In  the  "Revised  Statement"  (p.  241)  there  is  added  to  the  amount 
of  insurances  a  sum  of  $85,177,  the  claim  being  in  this  manner  all  but  doubled.  There 
are  also  .added  thf-  following  claims :  A  claim  by  tha  owners  for  prospeottt^e  earnings 
amounting  to  $lLd,807;  a  claim  by  the  master  for  loss  of  prospective  catch,  time,  and 
occupation,  amounting  to  $20,000 ;  a  similar  claim  by  the  mate,  amounting  to  $10,000 ; 
another  claim  of  $30,000  for  insurances  on  vessel  and  outfit;  and  finally,  the  sum  of 
$16,000  for  insurances  by  the  oivners  on  the  vesseVa  prospective  earnings.  In„,this  manner 
the  original  claim,  which  was  less  than  $66,000,  has  grown  to  the  sum  of  $406,934,  and 
has  therefore  been  increased  more  than  sixfold. 

19.  One  more  subject  remains  to  be  dealt  with.  Tiie  United  States, 
in  their  Argument,  (page  220,)  have  appealed  to  certain  historical 
precedents.  After  stating,  in  a  passage  already  referred  to,  (aud  to 
which,  it  is  hoped,  a  full  and  sufficient  reply  has  been  made,)  that  they 
conceive  this  demand  of  interest,  as  an  element  of  damage,  to  be  "  con- 
formable to  public  law,  and  to  be  required  by  paramount  cousideratious 
of  equity  and  justice,"  they  add: 

Numerous  examples  of  this  occur  in  matters  of  international  valuation  aud  indom- 
uity. 

Thus,  on  a  recent  occasion,  in  the  disposition  of  Sir  Edward  Thornton,  British  Min- 
ister at  Washington,  as  Umpire  of  a  claim  on  the  part  of  the  United  States  against 
Brazil,  the  Umpire  decided  that  the  claimants  were  entitled  to  interest  by  the  same 
right  which  entitled  them  to  reparation.  And  the  interest  allowed  iu  this  case  was 
(45,077  dollars)  nearly  half  of  the  entire  award,  (100,740  dollars.) 

So,  in  the  c<a«e  of  an  award  of  ..amages  by  the  Emperor  of  Russia  iu  a  claim  of  the 
United  States  against  Great  Britain  under  the  Treaty  of  Ghent,  additional  damages 
were  awarded  iu  the  nature  of  damages  from  the  time  when  the  indemnity  was  due. 


BRITISIC   ARGUMENT — INTEREST. 


561 


r)03  as  dani- 


lii  that  caMo,  Mr.  Wirt  holds  that,  according  to  the  usage  of  uatioiis,  interest  is  due  ou 
international  tnin>actioii8. 

In  like  manner  Sir  .lohu  NichoU,  British  (Joiumissioner  in  the  adjustment  of  damage 
lintweeii  the  United  States  and  Great  Britain  under  the  Jay  Treaty,  awards  interest, 
and  says : 

To  re-iinbnrse  to  claimants  the  original  cost  of  their  pioperty,  and  all  the  expenses 
they  have  actually  incurred,  tofiilhcr  willi  itilercxi  on  the  whole  amount,  would,  I  think,  he 
ii  just  and  adequate  compensation.  Tliis,  1  believe,  is  the  measure  of  comj^ensation 
usually  made  by  all  belligerent  uatious  for  losses,  costs,  and  damages  occasioned  by 
illegal  captures. 

*20.  There  can  be  no  greater  fallacy,  and  there  i.s  also  none  more 
liuniliar  to  the  practical  ex[)erience  of  Jurists,  than  this  kind  of  general 
reference  to  precedents,  which,  when  the  facts  are  examined,  hin  found 
ro  diifer  from  the  case  to  which  they  are  sought  to  be  api>lied,  in  all  or 
some  of  the  most  essential  points,  u^mn  which  the  question  in  contro- 
\ors.v  depends. 

Let  us  now  examine  these  "examples"  in  their  proper  historical  order, 
which  has  been  inverted  in  the  Argument  of  the  United  States. 

21.  The  earliest  in  date  is  that  of  the  claims  under  the  "  oay  Treaty," 
/.  c,  the  Treaty  between  Great  Britain  and  the  United  States,  signed  at 
London,  on  the  19th  November,  1794.  That  Treaty  contained  two  Ar- 
ticles applicable  to  different  descriptions  of  claims.  The  sixth  Article 
was  in  these  terms : 

Whereas  it  is  alleged  by  divers  British  merchants  and  others.  His  Majesty's  subjects, 
tliat  debts  to  a  co>isiderahh-  amoinit,  which  were  bond  Jidc  contyactcd  before  the  peaee,  still  re- 
main owing  to  them  hi/  c'iicens  or  inhabitants  of  the  United  Statcx,  and  that,  by  the  opera- 
lion  of  various  lawful  impediments  since  the  peace,  not  only  the  full  rceorenj  of  the  said 
(kilts  has  been  delayed,  but  also  th(i  value  aud  security  thereof  have  been,  in  several  in- 
stances, impaired  and  lessened,  .so  that,  by  the  ordinary  course  of  Judicial  proceedings,  the 
Bri'ish  creditors  cannot  now  obtain,  and  actually  hare  and  reeeirc,  full  and  adequate  compen- 
sation for  the  losses  and  damages  which  they  hare  thereby  sustained;  it  is  agreed  that,  in  all 
such  eases  where  full  compensation  for  such  losses  aud  dauuiges  cannot,  for  -whatever 
reasons,  be  actually  obtained,  had,  and  received  by  the  creditors,  in  the  ordinary  course 
of  justice,  the  United  States  will  make  full  and  complete  compensation  for  the  same  to  the  said 
(irdilors;  but  it  is  distinctly  understood  that  this  provision  is  to  extend  to  such  lo.sses 
nul^  as  liave  been  occasioned  by  the  lawful  impediments  aforesaid,  and  is  not  to  ex- 
teuii  to  losses  occasioned  by  such  insolvency  of  the  debtors  or  other  causes  as  would 
wpially  have  operated  to  produce  such  loss  if  the  said  impediments  had  not  existed, 
nor  to  such  losses  or  dauuiges  as  have  been  occasioned  by  the  manifest  delay  or  negli- 
Ijiince,  or  willful  omission,  of  the  claimant. 

This  Article  having  relation  to  dehts  actually  and  hand  fide  due  and 
payable  by  American  to  British  subjects,  and  of  which  the  payment  had 
been  delayed  and  prevented  by  legal  impediments  opposed  to  the  re- 
covery of  such  debts  by  the  policy  and  legislation  of  the  Government 
of  the  United  States,  it  is  apparent  not  only  that  the  claims,  being 
liquidated,  admitted  of  the  computation  of  interest  upon  them  in  the 
most  proper  sense  of  that  word,  but  also  that  they  were  such  as  entitled 
the  claimants  to  interest  upon  the  strictest  principles  of  private  juris- 
prudence, which  here  necessarily  furnished  the  rule,  the  responsibility 
for  these  private  debts  being  expressly  assumed,  on  grounds  of  public 
policy,  by  the  Government  of  the  United  States.  The  British  Commis- 
sioners, under  this  Article  (being  a  majority)  accordingly  decided,  in 
the  case  of  Messrs.  Cunningham  &  Co.,  (18th  of  December,  1798,)  that 
interest  ought  to  be  awarded  "for  the  detention  and  delay  of  payment 
of  these  debts  during  the  war  as  well  as  in  time  of  peace,  according  to 
the  nature  and  import,  express  or  implied,  of  the  several  contracts  on 
which  the  claims  were  founded."  From  this  decision  the  American 
Commissioners,  Messrs.  Fitzsimons  nnd  Sitgreaves,  on  the  21st  Decem- 
ber, 1798,  recorded  their  dissent,  their  objections  being  most  strongly 
urged  with  reference  to  the  allowance  of  interest  during  the  time  of 

36  c 


"■•1 


562 


SIJITLKMENTARV   AKGUMENTS   AND   STATEMENTS. 


!f 


i!:  -i 


■i 


war;  and,  on  the  lltli  Jann.ary,  1799,  they  followed  up  this  dissent,  and 
another  protest  made  by  them,  in  a  different  case,  by  withdrawing  from 
the  lioard  and  altogether  suspending  the  proceedings  of  the  Commis- 
sioners on  that  description  of  claims. 

22.  The  seventh  Article  of  the  same  Treaty  provided  for  the  settle- 
ment, by  Commissioners,  of  two  other  classes  of  claims.  The  first  class 
consisted  of  claims  by  citi/cns  of  the  United  States: 

Whevoas  coiiiplaints  liavo  been  nuulo  by  divers  incrcliaiits  and  otlieiH,  citizens  of  tlio 
United  States,  that,  duiinj^  the.  coniso  of  the  war  in  which  His  Majesty  is  now  cnjfaf^iuJ, 
they  have  sustained  considerable  losses  and  daniaj^e,  bi/  vmmn  of  imynlar  or  illegal  rap. 
turiHor  coiidetnnatioiii  of  their  rcsKcln  and  other  froperty,  undercolor  of  anthority  or  comminni  '/iv 
from  UinMajentii ;  and  that,  fronwarionscircunistances  beloiif^iiifij  totliesaid  cases,  a  le- 
qiiate  couiiieiisation  for  the  losses  aiul  daniaj^es  sustained  cannot  now  be  actually  cli- 
tained,  had,  and  received,  by  the  ordinary  course  of  judicial  ]troceedin};s:  it  is  agreed 
that,  in  all  such  cases  where  adequate  compensation  cannot,  for  whatever  reason,  l)e 
now  actually  obtained,  had,  and  received  by  the  said  merchants  and  others  in  tlu* 
ordinary  course  of  justice,  full  and  eomi)lete  compensation  for  the  same  will  be  made 
by  the  liritisii  (jovernmeut  to  the  said  complainants.  But  it  is  distinctly  understood 
that  this  provision  is  not  to  extend  to  such  losses  or  damages  as  have  been  occasioned 
by  the  manifest  delay  or  negligence,  or  willful  onussiou  of  the  claimants. 

TIm)  Commissioners  appointed  ''for  the  purpose  of  ascertaining  the 
amount  of  any  such  losses  and  damages"  were  to  "  decide  the  claims  iii 
ciuestion  according  to  the  merits  of  the  several  cases,  and  to  Justice, 
e<iuity,  and  the  laws  of  nations."  Sir  John  Nicholl  was  one  of  those 
Commissioners,  and  he  concurred  (on  the  grounds  stated  in  the  Argu- 
ment of  the  United  States)  in  awarding  interest  on  the  ascertained 
amount  of  "  the  original  cost  of  the  property  of  the  claimants,"  and  "  all 
the  expenses  which  they  had  actually  incurred."  This,  again,  was  a  case 
of  the  award  of  interest  on  a  principal  value,  actually  ascertained  and 
proved  to  be  recoverable  by  appropriate  evidence,  in  respect  of  property, 
belonging  to  citizens  of  the  United  States,  which  had  been  seized  aMd 
appropriated,  and  unjustly  detained,  and  (in  some  cases)  sold  or  other- 
wise dispelled  of  for  their  own  benefit,  by  persons  acting  under  the  pub- 
lic authority  of  the  Crown  of  Great  Britain.  In  both  these  essential 
points  this  precedent  of  1794  stands  in  direct  opposition  and  contrast  to 
the  claims  now  before  the  present  Tribunal. 

23.  The  second  class  of  claims,  under  the  seventh  Article  of  the  Treaty 
of  1794,  consisted  of  claims  of  British  subjects  who  complained  "  that, 
in  the  course  of  the  war,  they  had  sustained  loss  and  damage  by  reason 
of  the  capture  of  their  vesfiels  and  merchandise  taken  icithin  the  limits  and 
jurisdiction  of  the  United  States,  and  hrovght  into  the  ports  of  the  same,  or 
taken  hy  vessels  originally  armed  in  ports  of  the  said  States.''^ 

As  to  these  vessels,  the  Government  of  the  United  States  entered 
into  an  engagement  (by  Mr.  Jefferson's  letter  to  Mr.  Hammond  of  Sep- 
tember o,  1793)  with  the  British  Government,  to  "  use  all  the  means  in 
their  power"  for  the  restitution  of  such  of  them  {and  such  only)  as  had 
been  brought  into  jiorts  of  the  United  States  after  the  ~)th  of  June,  1793, 
on  which  day  M.  Genet,  the  French  Minister,  received  notice  from  the 
President  of  the  United  States  that  he  was  prohibited  from  bringing  in 
such  prizes ;  a  promise  being  added  that  compensation  should  be  made 
for  some  particular  vessels  acknowledged  to  be  within  that  category,  as 
to  which  Mr.  Jefferson  expressly  admitted  that  "  for  particular  reasons" 
liis  Government  had  "forborne  to  use  all  the  means  in  their  power  for 
their  restitution  ;"  and  in  like  manner  for  any  others,  as  to  which  they 
might  subsequently  think  fit  to  exercise  a  similar  forbearance. 

The  Commissioners,  under  this  part  of  the  Article,  refused  all  compen- 
sation to  the  owners  of  British  vessels  taken  by  French  ships  of  war  or 
privateers  originally  armed  in  ports  of  the  United  States,  which  were 


BRITISH   ARGUMENT INTEREST. 


563 


zpiis  of  tho 

•  ilhgal  rnp- 
commmi  'iis 
I  cases,  a' It'- 
ictuully  cb- 
it  is  iiniectl 
f  reason,  Im 
hers  in  tli(^ 
ill  1)0  iiiiiilc, 
muleistood 
1  occasioned 

aining  tlio 
e  claims  iii 
to  Justice, 
10  of  those 

the  Argu- 
iscertaiued 
,"  and  "  iill 

was  a  case 
tained  and 
f  property, 

seized  and 
d  or  otber- 
er  tlie  pub- 
,e  ebseutial 

coutrast  to 


either  brought  by  the  captors  into  American  waters  before  the  ."ith  of 
June,  17U,'J,  or  were  destroyed  at  sea,  and  never  brought  at  all  into 
])ort8  of  the  United  States.  As  to  the  other  cases,  in  which  compensa- 
tion was  given,  it  does  not  appear,  from  any  nuiterials  accessible  to  the 
Counsel  of  Her  liritannic  Majesty,  Avhether  interest  upon  the  ascertained 
value  of  any  IJritish  prizes  brought  into  ports  of  the  United  States  after 
the  oth  of  June,  17t>i{,  and  not  restored  pursuant  to  ^Ir.  Jeflerson's  let- 
ter, was,  or  was  not,  awarded.  Assuming  such  interest  to  have  been 
awarded,  the  reason  is  obvious.  The  values  of  these  prizes  were  ascer- 
tained and  determined  by  the  Commissioners  upon  appropriate  evidence ; 
and  the  interest  (if  any)  was  calculated  upon  those  ascertained  amounts. 
The  engagement  of  the  Government  of  the  United  States  had  made  tho 
amounts  so  ascertained  debts  directly  due  to  iireat  Britain  by  the  United 
States  upon  the  footing  of  an  express  contract,  from  the  moment  at  which 
the  prizes,  being  within  the  power  of  the  United  States,  ought  to  have 
been  restored  according  to  the  tenns  of  IMr.  Jelferson's  letter,  but  were, 
"for  particular  reasons,''  purposely  allowed  by  the  United  States'  Gov- 
ernment to  remain  in  the  hands  of  the  captors.  Tliis  was  strictly  a 
case  of  a  debt  due  and  of  a  willful  delay  and  default  in  payment ;  accord- 
ing, therefore,  to  ordinary  juridicial  principles,  it  was  right  that  it  should 
be  recovered  with  interest. 

24.  The  next  in  order  of  the  historical  precedents  is  that  of  the  claims 
under  the  Treaty  of  Ghent.    The  following  is  the  history  of  that  case  : 

During  the  war  between  Great  Britain  and  the  United  States,  in 
1812-'13,  the  British  forces  took  possession  of  certain  private  property 
(principally  slaves)  of  American  citizens.  The  first  article  of  the  Treaty 
of  Ghent  (1814)  contained  a  positive  engagement  by  Great  Britain  for 
the  restitution  of '*  slaves,  or  other  private  property,"  so  taken,  which 
might  remain  in  British  possession  at  the  time  of  the  exchange  of  the 
ratifications  of  the  Treaty.  "  In  violation  of  this  Treaty,  the  slaves  and 
other  property  of  American  citizens,"  says  3Ir,  Wirt,  the  American 
Attorney-General,  in  his  opinion  of  May,  ISl'tJ,  now  (pioted  by  the  United 
States,  "  w  ere  carried  away  in  the  year  1815,  and  have  been  detained 
from  them  ever  since.  They  have  thus  lost  the  use  of  this  property  for 
eleven  years." '  In  October,  1818,  ditterences  having  arisen  between 
the  two  countries  on  this  subject,  a  Supplemental  Treaty  was  signed  in 
London,  by  the  5th  Article  of  which,  after  stating  that  "  the  United 
States  claim  for  their  citizens,  and  as  their  private  property,  the  resti- 
tution of,  or  full  compensation  for,  all  slaves,  &c.,"  it  was  referred  to  the 
Emperor  of  liussia  to  decide  between  the  parties,  "  whether,  by  the 
true  intent  and  meaning  of  the  aforesaid  article  (/.  e.,  Article  I  of  the 
Treaty  of  Ghent)  the  United  States  are  entitled  to  the  restitution  of,  or 
full  compensation  for,  all  or  any  slaves  as  above  described."  The  Em- 
peror of  Russia  made  his  award,  deciding  that  the  United  States  were 
^^  entitled  to  a  full  and  just  indemnif  cation  for  the  slaves  and  other  prop- 
erty  carried  away  by  the  British  forces,  in  violation  of  the  Treaty  of  GhcntJ'^^ 

A  convention  was  afterward  (July,  1822)  signed  between  the  United 
States  and  Great  Britain  at  St.  Petersburgh,  under  which  commis- 
sioners of  claims  were  appointed  for  the  purpose  of  carrying  the  award 
of  the  Emperor  into  effect. 

Under  this  Convention,  the  Britisih  and  American  Commissioners  disa- 

'  opinions  of  tho  AttorneyH-Geueral  of  the  United  States,  vol.  ii,  p.  'S'i. 

^The  statement  of  the  United  States  that  tho  Emperor  awarded  either"  damages" 
or  "  additional  damiigesiu  the  nature  of  damages  from  the  time  when  the  indemnity 
was  due"  is  entirely  <;rroneou8.  Tho  reference  to  tlie  Emperor  was  only  to  determine 
a  disputed  question  on  the  construction  of  the  Treaty  of  Ghent. 


n 


564 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


i. 


greed  upon  the  question,  whether  interest  ought  or  ougiit  not  to  be  al- 
lowed upon  the  ascertained  value  of  the  slaves,  from  the  time  when 
they  were  taken  away  in  the  manner  which  the  Emneror  of  Russia  had 
determined  to  be  a  viohation  of  the  Treaty  of  Ghent.  These  conflicting 
views  of  the  Commissioners  were  supported  on  each  side  by  the  law 
officers  of  their  respective  governments.  Mr.  Wirt,  the  American  At 
torney-Cleueral,  insisted  "  that  interest  at  least  was  a  necessary  part  of 
the  indemnity  awarded  by  the  Emperor;"  that,  "without  it,  a  just 
indemnification  could  not  be  made."  '■  The  first  act  of  disposneision 
being  thus  established  to  be  a  wrong,  is  the  continuance  of  it,"  he  asked, 
"  of  that  dispossession  for  eleven  years,  no  wrong  at  all  *.  Is  it  consist- 
ent with  that  usage  of  nations,  which  Sir  John  NichoU  recognizes,  to 
redresH  an  act  of 'wrongful  violence  by  the  return,  at  any  length  of  time, 
of  the  naked  value  of  the  article  at  the  date  of  the  injury  if''  And  he 
states  his  conclusion  thus :  "  Upon  the  whole,  I  am  of  opinion  that  the 
just  indemnification  awarded  by  the  Emperor  involves  not  merely  the 
return  of  the  value  of  the  si>ecific  property,  hut  a  compensation  ahofor 
the  subsequent  and  icronfiful  detention  of  it,  in  the  nature  of  damages." 
(Opitiions  of  Attornevs-General  of  the  LTnited  States,  vol.  ii,  pp.  L*l),  ,'31, 
32, 33.) 

It  is  instructive,  on  the  other  hand,  to  observe  the  views  upon  the 
question  of  i)rinciple,  applicable  to  the  claim  of  interest,  (independently 
of  the  construction  of  the  Treaties,  the  Emperor's  award,  and  the  Con- 
vention of  St.  Petersburg,)  which  were  expressed  by  the  eminent  Law- 
Officers  of  the  British  Crown.  Sir  Christopher  llobinson  was  then  King's 
Advocate,  and  Sir  John  Copley  (afterwards  Lord  Lyndhurst)  and  Sir 
Charles  Wetherell  were  Attorney  and  Solicitor-General.  The  King's 
Advocate  (lUth  May,  1825)  thought  that,  on  general  principles,  interest 
was  not  i>ayable.  He  referred  to  the  same  rules  of  private  jurispru- 
dence, which  have  been  stated  in  an  earlier  part  of  the  present  argu 
ment : 

Tlie  luk'.s  of  law,  so  iar  as  tliiiy  may  l»c  upplicablc  to  this  ijucstiou,  do  not  favoi 
claims  of  intert'st,  except  uiul»;r  special  circumHtau'*<>s,  as  in  cases  of  a<;rcoment,  ex- 
presseu  or  im)»lied,  or  of  the  possession  and  enjoyment  of  intermediate  profits,  or  of 
injury,  properly  so  termed,  in  respect  to  the  tortious  nature  of  the  act,  for  which  the 
compensation  is  to  be  made. 

He  proceeded  to  illustrate  these  rules,  from  the  laws  of  England  and 
of  the  United  States,  and  added : 

The  principles  of  the  General  Law  of  Europe,  as  derived  from  the  Civil  Law,  and 
adopted  iu  the  several  countries,  ccurespoud  with  this  exposition.  "  Interest  of  money 
is  not  a  natural  revenue,  and  is  t)nly,  on  the  part  of  the  debtor,  a  punishment  whicli 
the  law  inflicts  upon  him  for  delay  of  payment,  ('  nsura  pecnniic  quam  percipinnis,  iu 
fructu  uou  est,  quia  uon  ex  ipso  corpore,  scd  ex  alia  causa  est,  id  est  nova  obliga- 
tione.)' 

"  Usura^  uon  projiter  lucrum  peteutium,  sed  propter  moram  solventium  infliguntur.'"' 

In  the  result  he  regarded  the  question  as  entirely  depending  upon 
the  true  interpretation  of  the  Treaties  and  the  Convention  of  St.  Pe- 
tersburgh,  and  considered  that  these  instruments  did  not  support,  but 
were,  on  the  contrary,  at  variance  with  the  claim. 

The  views  of  Sir  J.  Copley  and  Sir  C.  Wetherell  (lOth  November, 
1825)  were  in  some  respects  diflereut  from  those  of  Sir  C.  Kobinsou. 
After  referring  to  the  First  Article  of  the  Treaty  of  Ghent,  and  to  the 
Emperor's  award  as  to  its  construction,  they  said : 

In  the  removal,  therefore,  of  the  slaves  in  question,  this  enj^agemeiit  has  been  in- 
fringed, and  the  parties  injured  by  such  infriagemeut  are  entitled  to  compeusatiou. 


'  Domat,  Tit.  "  Interest,"  lib.  i,  p.  121. 


3  Ibid.,  p.  419. 


BRITISH    AKOUMENT INTEREST. 


565 


to  be  al- 
no  when 
issia  had 
•ntiictiuK 
the  law 
I'icau  At 
y  part  of 
t,  a  just 
msscssion 
he  asked, 
it  consist- 
j^nizes,  /<» 
I  of  time. 
Aud  he 

I  that  the 
lerely  the 
m  tiLso/or 

damages." 
pp.  L»o,;u, 

upon  thf 
ipendently 

II  the  Coii- 
neut  Law- 
heu  Kins> 
t)  and  Sir 
Che  King's 
BS, interest 
B  Jurisprii- 
sent  argil 


ilo  not  fa  vol 
[leoment,  <'X- 
pvolits,  or  oi 
n  which  the 

gland  and 


il  Law,  anil 
est  of  money 
hment  whicli 
eicipimus,  in 
uova  oblifja- 

nfliguntur.'" ' 

ding  upon 
of  St.  Pe- 
ipport,  but 

November, 

Kobiusou. 

aud  to  the 


has  been  in - 
oiupeusation. 


I 


V- 


419. 


It  must  l»«  ol)vioii.s,  however,  that  th<<  hare  restitiitictn  or  p.aynn'nt  of  the  value  of  the 
slaves,  after  an  interval  of  ho  many  year-  from  the  period  nluii  tlir>/  oiiijhl,  aaordintj  to 
the<ujrti'mi'iit,  to  hare  btrii  rcHloretl, \\i\l  not  form,  by  any  nit^anH,  an  a<Iei|nate  eompensa- 
tion  to  the  owners  for  the  loss  tln'y  have  snstained  by  the  breach  of  this  Article  of  the 
Treaty  ;  and  we  think  the  addition  of  iiiterent  to  the  rtiliiv  of  the  uluren,  xiieh  iiitenxt  hvititj 
I alviitated  from  the  period  when  thei/  ouijht  to  hare  been  f/iren  np,  in  a  fair  and  moderate  mode 
of  entimatiug  the  damatje  xnntained  by  the  injured  parties.  In  onr  mnnicipal  law,  where  a 
part;/  eonlractx  to  delirer  personal  propirty  at  a  particular  time,  or  where  he  nnjnstln  detains 
the  ijoods  of  another,  he  may  be  eompelled  to  deliver  sueh  propurty,  or  to  pay  the  rahie,  and 
farther  to  pay  damayes  for  the  detention.  If,  therefore,  the  question  had  rested  here,  we 
should  hare  been  of  opinion,  upon  this  yeneral  reasoniny,  that  the  claim  to  interest  ought  to 
have  been  allowed  by  the  Commissioners.  Ibit  npon  ailverlin<;  to  the  Treaty  of  London, 
to  the  award  of  the  Emperor,  and  to  the  Convention  of  St.  Petersbiirjfh,  we  are  led  to 
a  different  couclnsion. 

The  question  upon  whieh  the  British  and  American  Connnissioners 
and  Law-Officers  had  thus  differed  was  eventually  settled,  upon  terms 
of  compromise,  by  another  Supplementary  Convention  between  the  two 
countries.  But  supposing  that  the  question  had  been  tinembarrassed 
by  any  difliculties  in  the  construction  of  the  exi)ress  Treaty  engage- 
ments upon  the  subject,  and  that  it  ought  properly  to  have  been  «ieter- 
niined,  on  general  ]nnnciples,  in  accordance  with  the  views  of  Mr.  Wirt, 
Sir  John  Copley,  and  Sir  C.  Wetherell,  it  is  plain  that  these  views  rested 
upon  the  simple  and  ordinary  ground  that  property  of  ascertained  value, 
which  Gre.at  Britain  had  in  her  actu.al  possession  at  the  time  of  the  rat- 
ilication  of  the  Treaty  of  Ghent,  aud  which,  by  that  Treaty,  she  had 
expressly  contracted  and  engaged  to  deliver  up  to  the  United  States, 
had  been  Avrongfully  and  i)ermanently  detained  in  violation  of  that 
engagement.  The  case,  in  these  respects,  was  precisely  similar  to  that 
under  the  latter  clause  of  the  Seventh  Article  of  the  Treaty  of  1794. 

2~}.  Before  i>arting  entirely  with  this  precedent,  it  does  not  seem  out 
of  place  to  refier  to  some  other  forcible  observations,  nnido  by  Sir  Chris- 
topher Robinson,  in  an  earlier  opinion  given  to  the  Briti.sli  Government 
on  the  same  subject,  on  JMarch  18,  1825 : 

The  snbjcct  of  interest  i)rosents  a  «inestion  of  considerable  imiiortance  and  delicacy, 
and  to  which  it  will  be  dillicnlt  to  a])ply  the  analogy  of  rnles  derived  from  le<jal  pro- 
ceedings, independeut  of  the  political  considerations,  which  may  have  regnlated  the 
conduct  of  the  Power  making  coniponsation  in  the  i)articular  case.  In  that  view,  it 
seems  to  bo  a  reasonable  distinction  which  is  raised,  that  Sovereign  Powers  do  not 
usually  pay  interest,  nnless  they  stipulate  so  to  do.  The  obligations  of  Governments 
for  civil  injuries  arc  nnitters  of  rare  occurrence,  and  depend,  in  form  and  substance,  as 
luuch  on  liberal  concessions,  or  on  reciprocal  engagements,  as  on  the  intrinsic  justice 
or  e([uity  of  the  claim.  They  are  nsually  compensations  (compromises  iiade  on  ques- 
tions in  doubt,  after  considerable  intervals  of  time,  by  which  interest  is  much  en- 
hanced. They  are  also  conii)ensations  for  the  acts  of  others  ;  for  the  conse<|uences  of 
error  or  misunderstanding  rather  than  of  intentional  injury  ;  and  for  cases  in  which 
no  profit  or  advantage  has  accrued  to  the  party  by  whom  such  compensation  is  made, 
t.'onsiderations  of  this  kind  seem  to  re(|uirc  that,  if  interest  is  to  be  paid  as  part  of  the 
compens.atiou  by  Treaty,  it  should  be  matter  of  special  arrangement  as  to  amount  and 
particulars  ;  and  the  reasonableness  of  that  expectation  sui)ports  the  distinction  sug- 
jiested,  that,  where  no  such  stipulation  is  made  between  Sovereign  Powers,  interest 
shall  not  be  considered  as  due. 

2G.  These  are  the  words  of  a  Jurist  (the  reporter  of  the  celebrated 
judgments  of  Sir  William  Scott,  Lord  Stowell)  who  was  particularly 
conversant  with  questions  of  Public  and  International  Law.  Of  the 
numerous  examples  of  the  allowance  of  interest  between  nations,  with- 
out special  agreement,  which  are  supposed  by  the  Counsel  of  the  IJuited 
States  to  exist,  he  was  evidently  not  aware.  Instances  may,  indeed,  be 
found,  (some  before,  and  some  later  than  1825,)  in  which  claims  of 
individuals  for  interest,  as  a  legal  incident  of  liquidated  debts  and  obli- 
gations have  been  held  proper  to  be  considered,  and  to  be  allowed  if 
found  ju.st.    There  are  also  other  instances,  in  which  a  State,  acknowl- 


rM 


SUPPLKMENTARY    ARGUMENTS   AND    HTATEMKNTS. 


i 


li 


.|U' 


W' 


(uljfiiijjf  itself  to  have  uiado  dofault  in  the  ])ayinoiit  of  its  own  li(|ui(lato(l 
Hecmiiiiry  debts  and  obligations  to  the  citizens  of  another  Stnte,  or 
acknowledging  itself  to  bo  responsible  for  the  wrongful  ai)i)ropriation  and 
detention,  by  its  olUcers  or  people,  of  property  belonging  to  the  citizens  of 
anotlMT  State,  has  expressly  contracted  to  make  payments  or  restitution, 
with  interest  at  an  agreed  rate.  ]{ut  Her  JJritannic  Majesty's  Counsel, 
after  careful  inquiry  from  the  best  sources  of  information,  lias  failed  to 
become  acquainted  with  any  instiinco  in  which  interest  has  yet  been 
allowed  as  an  element  of  danmges  between  nation  and  nation  in  the  set- 
tlement of  unliquidated  claims  (to  recur  to  the  words  of  Sir  (J.  Itobin- 
son)  "  for  the  acts  of  others,  for  the  consequences  of  error  or  misundei-- 
standing,  rather  than  of  intentional  injury  ;  and  for  cases  in  which  n<» 
protit  or  advantage  has  accrued  to  the  party  by  whom  compensation  is 
made." 

27.  The  third  aud  latest  ]n'ecedent,  cited  by  the  United  States,  is  that 
of  the  recent  award  of  Sir  E.  Thorntou  between  Brazil  and  the  United 
States,  in  the  ease  of  the  ship  Canada. 

In  the  year  1857  the  Minister  of  the  United  States  at  Kio  demanded 
compensation  from  the  Government  of  Brazil  for  "  an  outrage  committed 
on  the  high  seas,  near  the  Brazilian  coast,  by  a  body  of  Brazilian  sol- 
diers, upon  a  whale-ship  called  the  Canada,  sailing  under  the  flag,  and 
belonging  to  citizens,  of  the  United  States."  ^  The  nuitter  continued 
l)ending  for  some  years,  and,  eventually,  on  the  14th  March,  3870,  a 
Convention  was  concluded  between  Brazil  and  the  United  States,  by 
which  this  question  was  referred  to  the  arbitration  of  Sir  Edward 
Thornton,  then  aud  now  Iler  Britannic  Majesty's  Minister  at  Wash- 
ington. 

Under  this  reference  Sir  Edward  Thornton  made  his  award,  dated 
the  lltli  July,  1870,  by  which  he  found  the  following  facts  to  bo  estab- 
lished by  the  evidence  laid  before  him,  viz :  that,  ou  the  27th  Novem- 
ber, 185G,  the  Canada  grounded  upon  a  reef  of  rocks  within  Brazilian 
jurisdiction ;  that,  during  the  four  following  days,  proper  means  wen; 
used  by  her  captain  and  crew,  with  every  prospect  of  success,  to  get  her 
off;  but  that,  on  the  1st  of  December,  a  Brazilian  otticer,  with  fourteen 
armed  men,  boarded  her,  superseded  the  authority  of  the  Captain,  aud 
forcibly  prevented  the  further  prosecution  of  the  efforts  which  were 
being  made  to  save  the  ship  ;  that  she  would,  in  fact,  have  been  saved, 
but  for  this  improper  interference  of  the  oiiicers  of  the  Imperial  Govern- 
ment of  Brazil,  and  that  she  was  lost  through  that  interference ;  for 
which  reason,  he  held  the  Imperial  Government  to  be  responsible  for 
the  value  of  the  property  so  destroyed.  He  then  proceeded  to  deter- 
mine, according  to  the  evidence  before  him,  (which  included  proper  par- 
ticulars of  her  age  and  classification,  and  valuations  of  different  dates.) 
the  principal  sum,  representing  the  value  of  the  ship  at  the  time  of  her 
loss,  and  the  actual  cost  of  her  outfit.  He  rejected  all  claims  for  pro- 
spective catch  and  earnings;  he  allowed  some  small  sums  for  necessary 
expenses  incurred  by  the  crew  iu  traveling ;  he  also  allowed  to  some  of 
them  moderate  sums  for  three  months'  wages  ;  and  he  allowed  interest 
at  G  i>er  cent,  from  the  date  of  the  loss,  as  the  necessary  result  (in  his 
judgment)  of  the  liability  of  the  Brazilian  Government  for  the  jmncipal 
amount. 

This  decision,  like  those  before  examined,  proceeded  upon  ordinary 
juridical  principles.    The  Brazilian  Government,  by  their  officers  and 

'  Dispatch  of  Mr.  Fish  to  Mr.  Blow,  communicated  to  Bai-on  Cotegipe  on  tho  28tli 
December.  1869. 


^ 


mUTl.sl I    AKO UM KM IM  KKKST. 


;g7 


aoltlitH'H,  liiid  wioiif>;fiilly  taken  ])os.s('ssi()n  of,  and  liatl,  in  t'llect,  «lc- 
Htroyed,  a  United  Htates  ship  witliin  their  jnrisdietion,  >vhi<*li  was  enti- 
tled to  their  protection.  For  the  inll  vahie  of  the  h)ss  mo  indicted  nimu 
subjects  of  the  United  States,  tiiey  became  inunediattily  and  directlj- 
responsible,  as  nuich  as  if  they  had  seiziMl  and  detained  the  shij),  under 
circumstances  enabling;"  them  to  restore  it  to  its  owners.  Restitution  of 
the  ship  itself  bcin^;  impossible,  a  full  compensation  and  indemnity 
became  act  lally  due,  from  the  moment  of  the  loss ;  and  the  payment  of 
this  compensation  and  indemnity,  thouj^h  ])romptly  claimed,  was  for 
many  years  delayed.  The  amount  of  the  ])rincipal  loss  was  ])roperly 
investi^jfated  and  accurately  determined,  and  the  interest  given  was  accu- 
rately computed  upon  that  amount. 

LVS.  In  every  point  of  importance,  with  respect  to  the  i)rinciples  in- 
volved, this  last  precedent  (like  those  which  had  pone  before  it)  stands 
in  absolute  contrast  with  tlio  present  case.  In  this,  .is  in  the  earlier 
cases,  (to  sum  up  the  whole  matter  shortly,)  those  elements  were  found 
to  be  present,  which  were  Juridically  necessary  to  constitute  a  rifjht  to 
interest;  and  interest  was  accordingly  given  as  a  matter  of  strict  right. 
In  the  present  case  all  these  elements  are  absolutely  wanting;  and,  in- 
stead of  them,  others  are  present,  the  effect  of  which  is  not  to  support, 
but  to  repel,  the  claim  of  interest,  even  if  the  appeal  is  made,  not  to 
any  rule  or  principle  of  public  law,  but  to  the  exercise  of  a  reasonable 
and  equitable  discretion. 

KOUNDGLL  TALMER. 


XII.-REFLY  ON  THE  PART  OF  THE  UNITED  STATES  TO  THE  AR- 
GUMENT OF  H2R  BRITANNIC  MAJESTY'S  COUNSEL  ON  THE 
ALLOWANCE  OF  INTEREST  IN  THE  COMPUTATION  OF  INDEM- 
NITY UNDER  THE  TREATY  OF  WASHINGTOX. 


I. 


tfi  "\ 


^^ 


Tlie  question  upon  which  the  Tribunal  is  understood  to  have  admitlod 
arffumeut  on  the  part  of  Her  Britannic  INLajesty's  Government  is, 
"  Whether,  supposing  a  capital  sum  as  an  adequate  measure  of  injury, 
in  the  judgment  of  the  Tribunal,  has  been  arrived  at,  the  proper  indem- 
nity for  that  injury  involves  the  allowance  of  interest  as  a  part  of  that 
indemnity  from  the  date  when  the  losses  accrued  to  the  sufferers  (and 
as  of  which  the  capital  of  the  losses  has  been  computed)  until  the  in- 
demnity is  paid  "?  "  We  have  had  an  opportunity  to  read  the  argument 
of  Her  Britannic  Majesty's  Counsel  submitted  to  the  Tribunal  upon  thi.s 
question,  and  now  avail  ourselves  of  the  right  under  the  Treaty  to  reply 
to  it,  so  far  as  such  reply  seems  to  us  suitable. 

I.  It  is  important  in  reference  to  this  question,  as  wo  have  hereto- 
fore had  occasion  to  suggest  in  respect  to  other  questions  opened  lor 
discussion  by  the  Tribunal,  to  confine  the  argument  within  proper  limits. 
By  doing  this  in  the  present  case,  wo  may  very  briefly  dispose  of  mucli 
that  occupies  a  good  deal  of  space  in  the  learned  Counsel's  argument. 

(fl)  The  question  assumes  that  a  method  of  measuring  the  injury  to 
the  United  States,  and  the  indemnity  therefor  from  Great  Britain,  lias 
been  adopted,  wiiich  takes  account  of  the  losses  suffered  is  of  the 
dates  (actual  or  average)  when  they  were  suffered,  and  fixes  an  amount 
in  money  wliich,  if  then  paid  to  the  sufferers,  would,  in  the  judgment  of 
the  Tribunal,  be  an  adequate,  and  no  more  than  an  adequate,  indemnity 
for  such  losses  to  the  sutlerers.  Upon  this  view  of  the  capital  sum,  in 
respect  of  which  the  allowance  or  refusal  of  interest  thereon  is  in 
question,  (and  no  other  view  seems  admissible,)  it  is  impossible  to  raise 
any  other  points  for  debate  than  the  following : 

First.  Is  the  delayed  p.iyment  of  a  sum  which,  if  i)aid  at  an  earlier 
date,  would  then  be  only  an  adequate  payment,  still  an  adequate  pay- 
uient  without  compensation  for  the  delay  i 

There  can  be  but  one  answer  to  this  question.  The  earlier  and  the 
later  payments  cannot  both  be  adequate,  and  not  more  than  adequate, 
to  the  same  obligation,  unless  they  are  equivalent  to  each  other.  But 
common  sense  rejects  the  proposition  that  a  present  payment  of  money 
and  a  delayed  payment  of  the  same  sum  are  equivalent.  They  are  not 
the  same  to  the  creditor  or  sufferer  who  receives  the  payment,  nor  to 
the  debtor  or  wrong  doer  who  nmkes  the  payment. 

Compensation  for  the  dehay  of  payment  is  necessary  to  make  present 
and  delayed  payments  equivalent  to  each  other,  and  each  equal  to  the 
same  obligation. 

It  thus  being  clearly  impossible  that  earlier  and  later  payment  should 
1)6  equivalent,  whenever,  in  fact,  only  the  later  payment  can  be,  and  is 
to  be,  made,  it  must  draw  with  it  the  compensation  for  the  delay  in  the 
nature  of  interest,  provided  it  is  intended  that  the  parties  should 
stand  after  the  delayed  payment  as  they  would  have  stood  after  nn 
earlier  payment. 


AMERICAN   ARGUMENT INTEREST. 


569 


Second.  It  will  be  readily  admitted  that  this  necessary  compensation 
for  delay  in  payment  of  a  snm,  which  has  been  computed  as  a. just  pay- 
ment, if  made  without  any  delay  therein,  cannot  be  justly  withheld,  un- 
less there  shall  have  been  ssomo  fault  on  the  part  of  the  creditor  or 
suiferer  whereby  the  delay  of  the  adequate  payment  is  imputable  to 
him. 

We  imagine  that  the  principles  of  private  law  governing  this  question 
and  justifying  the  refusal  of  interest  for  delay  of  payment  all  turn  upon 
this,  viz  :  that  the  debtor  was  ready  to  pay  and  the  creditor  was  unwill- 
ing to  receive. 

It  is  true,  in  addition,  that  the  jurisprudence  of  Groat  Britain  and 
of  the  United  States  permits  nothing  but  an  actual  tender  of  the  suffi- 
cient sum,  and  a  continued  keeping  of  the  sum  good  for  payment  on  the 
part  of  the  debtor,  and  a  refusal  to  receive  on  the  part  of  the  creditor, 
to  stop  the  running  of  interest  on  the  debt. 

The  other  class  of  cases,  in  which  the  debt  is  frequently  spoken  of  as 
not  drawing  interest,  more  accurately  should  be  described  as  a  situation 
wherein  the  transactions  between  the  parties  do  not  culminate  in  any 
obligation  of  one  party  to  pay,  or  right  of  the  other  party  to  demand, 
until,  as  a  part  of  those  transactions,  there  has  been  an  ascertainment 
of  amounts,  and  a  demand  of  payment. 

These  are  cases  of  mutual  accounts,  or  of  open  demands,  as  yet  un- 
liquidated. Until  the  eventunl  creditor  strikes  his  balance,  or  computes 
and  demands  his  debt,  there  is  no  delay  of  payment,  requiring  compensa- 
tion between  the  parties. 

Third.  There  seems  to  be  no  other  possible  reason  in  the  nature  of 
things  for  refusing  to  add  interest  for  delayed  payment  to  a  sum  which 
was  a  mere  indemnity,  had  it  been  promptly  paid,  other  than  a  disposition 
not  to  giivefull  indemnity,  that  is,  an  interition  to  apportion  the  loss. 

But  this  disposition,  if  it  should  be  just,  .;an  hardly  be  said  to  raise 
any  question  of  the  allowance  of  interest  any  mt^re  than  of  the  allow- 
ance of  principal.  It  will  be  all  the  same  to  the  American  suft'erer  who 
fails  to  receive  the  full  indemnity  which  delayed  payment  involves, 
whether  the  sum  which  is  actually  paid  him  is  computed  by  the  Tribunal 
as  half  his  princi[)al  loss  with  interest  added,  or  the  whole  of  his  prin- 
cipal loss  without  interest.  It  is  all  the  same  to  Great  Brit.ain  in  making 
the  iiayment,  whether  the  reduction  fiom  a  full  indemnity  is  computed 
by  refusing  the  full  capital,  and  calculating  interest  on  the  part  allowed, 
or  by  allowing  the  full  capital  and  refusing  all  interest  upon  it.  The 
tact  that  full  indemnity  is  or  is  not  given  cannot  be  disguised.  It  will 
not  be  more  than  given  because  interest  is  allowed.  It  will  not  be  any 
less  withheld  because  the  part  withheld  is  withheld  by  the  refusal  of 
interest. 

II.  If  these  views  are  correct  it  will  be  seen  that,  notwithstanding  the 
very  extended  discussion  of  Her  Britannic  jMiijesty's  Counsel,  tin*  real 
considerations  which  should  affect  the  allowance  or  disallowance  of  in- 
terest in  the  computation  of  the  award  of  the  Tribunal  lie  within  :• 
very  narrow  compains. 

[a)  We  may  lay  aside  all  the  suggestions  that  interestonthe  capital  sum, 
as  it  has  been  adopted  or  shall  be  adopted  by  the  Tribunal,  should  not 
be  allowed,  because  the  capital  is  or  is  like  to  be  excessive,  and  interest 
would  be  an  additional  injustice. 

These  ideas  are  put  forth  in  sections  14,  17,  and  18  of  the  learned 
Counsel's  argument  under  two  heads,  (1)  that  the  computation  by  the 
Tribunal  of  the  capital  will  be  excessive  jpe>-  se,  and  (2)  that  it  will  be 
excessive  by  adopting  in  coin  values  that  are  stated  in  2)aper  currency. 


570 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


i   > 


lu  the  first  place,  all  this  is  not  a  reason  for  refusing  intercHt,  but  for 
correcting  tbo  computation  of  capital  on  which  the  interest  shoulu  be 
computed.  We  cannot  enter  into  any  such  riule  jntlgment  as  this. 
AV^e  are  not  invited  to  criticise  the  Tribunal's  computation  of  the  c«jijj7{(/ 
of  the  losses.  We  are  not  advised  what  that  computation  is  or  is  to  be. 
We  have  exhibited  to  the  Tribunal  evidence  and  computations  beariuj;;- 
ni)on  the  just  measure  of  the  capital  of  the  losses.  If  those  should  be 
adopted  by  the  Tribunal,  there  is  no  danger  of  excessive  indeoinity  to 
the  sufferers.  AVe  have  also  exhibited  to  the  Tribunal  the  evidence  and 
the  reasons  upon  which  we  insist  that  the  valuations  given  to  property 
in  the  "Claims"  as  presented  are  to  be  paid  in  coin.  AVe  do  not  re- 
peat them  here.  But  we  iirotest  against  an  attack,  in  the  dark,  upon 
the  Tribunal's  measure  of  the  capital  of  the  losses,  under  the  form  of  an 
argument  against  the  allowance  of  interest. 

(&)  AA^e  may  also  lay  aside  the  suggestions  prejudicial  to  the  allowance 
of  interest  on  the  claims  which,  by  subrogation  or  assignment,  have 
been  presented  by  the  insurers  who  have  indemnified  the  original  suf- 
ferers. So  far  as  Great  Britain  and  this  Tribunal  are  concerned,  who 
the  private  sulferers,  and  who  represent  them,  and  whether  they  were 
insured  or  not,  and  have  been  paid  their  insurance,  are  questions  of  no 
importance.  But  it  is  worth  while  to  look  this  argument  in  the  face  for 
a  moment.  Some  of  the  sufiferers  by  the  depredations  of  the  Alabama, 
the  Florida,  and  the  Shenandoah  were  insured  by  American  under- 
Avriters.  These  sufferers  have  collected  their  indemnitj'^  from  the  under- 
writers, and  have  assigned  to  them  their  claims. 

The  enhanced  premiums  of  insurance  on  general  American  commerce 
have,  presumptively,  enriched  the  insurance  companies.  Great  Britain 
should  have  the  benefits  of  these  profits,  and  the  underwriters,  at  least, 
should  lose  interest  on  their  claims!  It  is  difficult  to  say  whether  the 
private  or  the  public  considerations  which  enter  into  this  syllogism  arc 
most  illogical.  Certainly  we  did  not  expect  that "  the  enhanced  payments 
of  insurance ^^''  which  Great  Britain  could  not  tolerate,  and  the  Tribunal  has 
excluded  as  too  indirect  consequences  of  the  .cts  of  the  cruisers  to  be 
entertained  when  presented  hy  the  merchants  who  had  paid  them,  were  to 
be  brought  into  play  by  Great  Britain  itself  as  direct  enough  in  the 
general  business  of  underwriting,  to  reduce  the  indemnity  on  insured 
losses,  which,  if  uninsured,  they  would  have  been  entitled  to. 

((*)  Equallj'  irrelevant  to  this  particular  question  of  interest  are  the 
considerations  embraced  in  section  11  of  the  learned  Counsel's  argu- 
ment. These  relate  (1)  to  the  fact  that  the  belligerent  aid  giv^eu  by 
Great  Britain,  for  which  it  is  now  to  be  charged  as  responsible,  were 
given  in  aid  of  the  reoels  against  the  Government  of  the  United  States 
in  their  attempt  to  overthrow  it,  and  that  by  the  triumph  of  the  Gov- 
ernment these  rebels  have  been  merged  in  the  mass  of  the  population 
of  the  United  States.  This  idea,  as  intimated  in  the  principal  discus- 
sions of  the  British  Case  and  Counter  Case,  has  been  responded  to  by  us 
already,  so  far  as  it  seemed  to  us  to  require  response.  (Argument,  p. 
479.)  It  certainly  has  no  special  application  to  the  question  of  interest. 
The  notion  seems  more  whimsical  than  serious,  but  whatever  weight  it 
possesses  should  have  been  insisted  upon  before  or  while  making  the  Treaty 
of  Washington.  The  terms  of  that  Treaty  have  relieved  the  Tribunal 
from  any  occasion  to  weigh  this  argument. 

But  {2)  in  section  11  of  the  learned  Counsel's  argument  it  is  insisted 
that  the  allowance  of  interest,  as  a  part  of  the  indemnity,  should  be 
affected  by  the  circumstances  of  the  failure  of  the  United  States  sooner 
to  cut  short  the  career  of  the  cruisers,  for  ^n  hose  depredations  Great 


■\^r\ 


AMERICAN   ARGUMENT INTEREST. 


571 


Dritaiii  is  now  held  responsible.  A  plea  to  this  ellect,  based  upon 
ottbrts  of  Great  Britain  to  arrest,  disarnr  or  confine  these  cruisers,  and 
thus  reduce  the  mischiefs  for  which  it  is  held  responsible,  would  have 
had  some  merit,  lint,  alas!  the  Proofs  furnish  no  support  for  such  a 
plea. 

As  to  the  action  of  the  United  States,  however  unsuccessful,  it  will 
1)0  time  enough  for  Great  JJritain  to  criticise  it  as  inefficient  when  its 
Navy  has  atte»npted  the  chase  of  these  light-footed  vagabonds,  which 
found  their  jirotection  in  neutral  ports  from  blockade  or  attack,  and 
sought  remote  seas  for  their  operations  against  peaceful  commerce. 
iiixt  this  consideration  has  no  special  application  to  the  <iuestion  of 
interest. 

III.  AVe  now  come  to  an  examination  of  some  suggestions  which 
purport  to  bear  upon  the  question,  whether  there  may  not  be  found  in 
the  relations  between  the  parties  in  respect  to,  and  their  dealings  with, 
these  claims,  some  reasons  Avhy  interest  should,  for  affirmative  cause, 
be  withheld. 

(a)  It  is  said  that  Great  Britain  is  not  in  a  position  of  having  had 
value  to  herself,  and  so  the  reasons  for  adding  interest  against  one  who 
withholds  a  debt  rei>re8enting  money  that  he  has  had  aud,  actually  or 
presumptively,  keeps  and  enjoys,  or  detains  property  whose  profits  he 
actually  or  presuuiptively  receives  and  enjoys,  do  not  apply. 

It  is  true,  these  yrccisc  reasons  do  not  apply,  and  they  do  not  any 
more  in  a  multitude  of  private  cases,  where,  nevertheless,  the  indem- 
uity  exacted  for  wrong-doing,  or  the  payment  required  to  make  whole 
the  creditor,  involves  the  payment  of  interest. 

It  has  never  been  suggested  that,  when  the  injury  coiisisted  in  an 
actual  destruction  of  property,  the  wrong-doer  was  less  liable  for  inter- 
est as  a  part  of  a  delayed  indemnity  than  when  he  had  applied  it  to 
his  own  use,  and  reaped  the  advantages  thereof.  So,  too,  in  matter  of 
contract,  the  surety  being  liable  for  the  debt,  is  just  as  liable  for  the 
interest  as  if  he  had  received  and  was  enjoying  the  money.  So,  too, 
where  one  is  made  responsible  for  the  injury  which  his  dog  has  done  to 
liis  neighbor's  sheep,  he  pays  interest  for  delayed  indemnity  just  as 
much  as  if  he  wore  their  wool  or  had  eaten  their  mutton. 

In  line,  the  question  in  respect  of  contracts  is,  whether  the  contract 
expresses  or  imports  interest,  and,  in  respect  of  torts,  whether  indem- 
nity is  demandable  or  is  to  be  mitigated.  If  indemnity  is  demandable, 
it  has  never  been  held  to  be  complete  unless  it  included  compensation 
tor  delay.  Besides,  in  this  actual  case,  suppose  that  twenty  millions  of 
dollars  are  a  measure  of  the  indemnity  that  Great  Britain  should  pay 
lor  the  capital  of  the  losses  suffered  for  which  it  is  responsible.  This 
means  that,  if  that  sum  had  been  paid  when  the  loss  happened,  the 
sutterer  would  have  been  made  whole  and  the  wrong  satisfied.  Instead 
of  that  adjustment  having  been  made,  instead  of  that  sum  of  money 
I  having  then  passed  from  the  wealth  of  Great  Britain  into  the  hands  of 
the  sufferers,  they  have  been  kept  out  of  it,  and  Great  Britain  has  re- 
tained it.  It  is  in  vain  to  say  then  that  the  delay  of  payment  has  not 
left  Great  Britain  in  the  possession  of  the  money  during  the  interval, 
I  for  the  contrary  is  true.  The  lapse  of  time  bar  all  the  while  been  to 
the  gain  of  the  indemnifler  ami  to  the  loss  of  the  sufferer,  uules^i  interest 
lidded  corrects  the  injustice  of  delay. 

(ft)  But  it  is  said  that  the  indeterminate  or  unascertained  amount  of 
these  injuries  precludes  the  allowance  of  interest  on  the  capital  that  shall 
be  finally  ascertained.  To  us  this  seems  no  more  sensible  than  to  say  that 
iaterest  should  not  be  allowed,  because  the  date  from  which  or  to  which 


572 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


♦    . 


it  was  to  run,  also  needed  to  be  ascertained  before  it  could  be  computed. 
The  problem  before  the  Tribunal,  as  bearing  upon  this  question  of  in- 
terest, may  be  very  simply  stated. 

The  injuries  for  which  Great  Britain  is  to  make  indemnity,  happened 
in  the  years  1SG3  to  1805.  The  Treaty  of  AVashington  provides  that 
the  sum  for  their  indemnity,  as  flxed  by  the  Tribunal,  shall  be  paid 
within  one  year  after  the  award. 

What  sum,  payable  as  of  this  date,  will  be  an  indemnity  for  destrncr- 
tion  of  property  occurring  seven,  eight,  and  nine  years  ago  ? 

Manifestly,  the  question  whether  Great  Britain  should  pay  interest 
is  an  inseparable  ])art  of  the  question  whether  it  is  to  make  indemnity. 

(c)  But  it  is  said  that  for  a  certain  period  of  time  the  United  States 
are  responsible  for  the  delay  of  payment  by  Great  Britain,  and  for  that 
period  Great  Britain  should  be  exempted  from  interest.  This  period  is 
put  as  from  the  failure  of  the  Johnson-Clarendon  Convention,  negotiated 
in  London  January,  18G9,  but  not  ratified  by  the  United  States.  If 
this  means  anything,  it  means  that  Great  Britain,  in  January,  18(59,  was 
ready  then  to  pay  to  the  United  States  the  sum  tliat  this  Tribunal  shall 
find  reason  to  fix  under  the  Eules  of  the  Treaty  of  Washington,  and  so 
notified  the  United  States.  The  intervening  delay,  consequently,  in  the 
receipt  of  the  money  is  chargeable  to  the  United  States.  Thus  put, 
the  proposition  is  intelligible,  but  utterly  unsupported  by  the  facts  ol' 
the  case. 

Great  Britain  has  never  admitted  its  liability  to  the  United  States  in 
the  premises  for  a  single  ship  destroyed  by  any  one  of  the  cruisers, 
nor  is  it  pretended  to  the  contrary.  Of  what  value  is  it  then  to  say, 
that  if  Great  JJritain  and  the  United  States  had  been  able  to  agree  upon 
different  and  earlier  arbitration  there  might  have  been  an  earlier  award, 
and  so  interest  should  cease  from  a  date  when  Great  Britain  was  ready 
to  accede  to  an  arbitration  upon  certain  terms  which  the  United  States 
rejected  ?  Certainlj^  the  efficacy  of  this  novel  limitation  on  the  runniiifi 
of  Interest  must  date  from  the  probable  period  of  the  award  under  the 
failing  arbitration.  Upon  no  reasonable  conjecture  could  the  connnis- 
sion  of  claims  arranged  by  that  convention  have  produced  its  award  at 
all  in  advance  of  what  may  be  expected  from  this  Tribunal. 

We  leave  out  of  consideration,  as  wholly  irrelevant,  the  suggestions 
that  it  was  to  the  non-concurrence  of  the  Senate  of  the  United  States 
that  the  failure  of  the  previous  attempt  at  arbitration  was  due.  That 
arbitration  failed  because  the  United  States  did  not  ratify  the  con 
vention.  But  to  give  any  force  to  this  argument,  it  .should  appear  that 
the  United  States  in  the  present  Treaty  have  simply,  at  a  later  date, 
concurred  in  what  they  then  refused.  This  is  not  pretended.  Indeed, 
it  is  to  the  presence  of  the  Three  Rules  of  the  Treaty  of  Washington 
as  the  law  of  this  Arbitration  that  Great  Britain  seems  disposed  to 
attribute  its  responsibility  to  the  United  States,  if,  in  the  judgment  of 
this  Tribunal, it  shall  beheld  responsible.  We  respectfully  submit  that 
there  is  no  support,  in  fact  or  in  reason,  for  this  attempted  limitation  on 
the  period  of  interest  to  the  date  of  the  Johnson-Clarendon  Conven- 
tion. 

{d)  The  argument  of  the  learned  Counsel  concludes  with  a  criticism 
upon  the  cases  under  the  Jay  Treaty,  and  under  the  Treaty  of  Ghent.  I 
jind  the  case  of  the  Canada,  as  decided  by  Sir  Edward  Thornton,  all  ot 
which  were  adduced  by  us  in  our  principal  argument  as  pertinent  on  j 
the  question  of  interest,  (p.  220.)  We  must  think,  with  great  re- 
spect to  the  observations  of  the  learned  Counsel  upon  these  cases,  that 
their  authority  remains  unshaken.    We  respectfully  submit  herewith  aj 


AMERICAN    ARGUMENT INTEREST. 


573 


statement,  showing  what  computation  of  interest  we  sui»posc    .onUl 
rightly  satisfy  the  demands  of  the  United  States  in  this  behalf. 

In  conclusion,  we  may  be  permitted  to  repeat,  in  reference  to  this  ele- 
ment of  computation  of  a  Just  indemnity,  what  we  have  said  on  the 
general  measure  of  indemnity  : 

This  principal  question  having  been  determined,  if  Great  Britain  is  held  rcsitonsible 
for  these  injnries,  the  people  of  the  United  States  expect  a  jnst  and  reasonable  meas- 
ure of  compensation  for  the  injnries  as  tiins  adjudicated,  in  the  sense  that  belonj^s  to 
this  question  of  conn)en8atiou,  as  one  between  nation  and  nation.  (American  Argu- 
ment, p.  225.) 

It  is  a  matter  of  the  greatest  interest  to  both  nations  that  the  actual 
injuries  to  private  sufferers  from  the  depredations  of  the  cruisers,  for 
which  Gieat  Britain  shall  be  held  responsible,  shall  be  fairly  covered 
and  satisfied  by  that  portion  of  the  award  what  shall  be  applicable  to 
and  based  upon  them.  That  this  cannot  be  expected  without  an  allow- 
ance of  interest,  is  obvious. 

A  recognized  right  to  indemnity,  and  a  deficient  jnovision  of  such 
indemnity,  should  be  the  last  thing  to  be  desired  as  a  solution  of  this 
great  controversy  between  these  nations. 

Wm.  M.  Evartss. 

C.  CUSHIN(}. 

M.  11.  Waite. 


NOTE  TO  THE  KEPLY. 

Summary  of  the  Amevican  claims,  ivilh  interest  at  7  per  cent,  addeil. 


Principal. 

Interest. 

Total. 

Alabama 

16, 557, 690  00 
4, 616, 303  93 
3,663,277  46 

$4, 740, 420  04 
3, 257, 760  85 
2, 123, 741  46 

$11,298,110  04 

Florida 

7,874,664  78 

.Shenandoah  .... 

5,787,018  00 

14,837,271  39 

10,121,922  35 

24,959,193  72 

In  case  the  Arbitrators  reject  column  5, 
(loah,  the  total  amount  of  claims  will  be — 

under  the  heading  Shenan- 

Principal. 

Interest. 

Total. 

$14,476,921  39 

$9, 615, 659  26 

$23,993,189  65 

(a)  Interest  is  calculated  a 
{b)  It  is  calculated  for  the 
each  cruiser,  namely ;  By  tht 
by  the  Florida,  for  ten  years 
eight  years  and  five  months. 

NOTE. 

bove  at  the  ra 

true  average 

5  Alabama,  for 

and  one  mon 

te  of  7  per  cei 
of  time  of  th 
ten  years  and 

th  ;  by  the  Sli 

it.  a  year, 
e  captures  by 
two  months ; 
enandoah,  for 

574 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


ALABAMA. 


Names  of  vessels. 


^ 


ii ' 


Alert 

Altamalia 

IJeiij,  Tucker  . 

Courser 

Ellslia  Duubar  . .. 

Kate  Cory 

Kiufjfishcr 

Lafayetto  2d 

Levi  Starbuck  . . . 

Nye 

Ocean  Rover 

Ociuulgee 

Virginia 

Weather  Guago  .. 

Brilliant 

Chas.  Hill 

Conrad  

Crenshaw 

Express 

(lolden  Eagle  .... 

Jabez  Snow 

John  A  Parks 

Lafayette 

Lamplighter 

Louisia  Hatch  . . . 

I'almetto 

Rockingham 

S.  Gildersleevo 

Wave  Crest 

Amanda 

Amazonian 

Anna  F.  Schmidt. 

Contest 

Dorcas  Prince 

Dunkirk 

(jolden  Rule 

Lauretta 

ALartaban 

Olive  Jane 

Parker  Cook 

Sea  Bride 

Talisman 

Sea  Lark 

T.  B.  Wales 

Tycoon  

Union  Jack 

Winged  Racer 

Manchester 

Cbastelaine 

Emma  Jane 

Highlander 

Sonora , 

Ariel 

.Instina , 

Morning  Star 


P.-,^.^<S- 


»z.° 


$44, 80:5  91 

•27, 105  00 

127, 610  0(i 

no,  7r)2  r)3 

88  200  00 

n;}  7t)0  25 

53,292  17 
111,747  00 
108,415  00 
107,974  25 
145,271  0:i 

2(;y,505  00 

77,  025  00 

23,515  00 

135,457  83 

50, 464  93 

101,640  00 

34,399  49 

103,820  00 

129,222  50 

104,518  00 

137,715  50 

132,250  10 

34,  355  00 

95,025  00 

27,858  33 

189,954  05 

48,  015  00 

64,029  10 

78,678  01 

143,612  82 

308,544  49 

158, 405  97 

69,644  60 

21,250  00 

90, 840  70 

37,264  04 

69,002  75 

97, 383  66 

31,089  50 

155,944  12 

247,765  00 

323,725  14 

241,261  24 

450,  589  00 

179,044  03 

385,867  91 

173, 080  92 

17, 595  55 

86,557  34 

206,171  00 

102,904  44 

10,  423  38 

7, 000  00 

5,614  40 


No  date. 

September, 

September, 

September, 

September, 

Ajiril, 

March, 

April, 

November, 

April, 

No  date. 

September, 

September, 

September, 

October, 

March, 

June,  1 

October, 

July, 

February, 

May, 

March, 

October, 

October, 

April, 

February, 

April, 

jNIay, 

October, 

November, 

June, 

July, 

November, 

April, 

October, 

October, 

December, 

February, 

November, 

August, 

June, 

May, 

No  /ember, 

Mar,  or  Apr. 

May, 

November, 

October, 

January, 

January, 

December, 

December, 

December, 

No  date. 

March, 


2  *:  -s  ^  ^  .£ 

D  a  S  s  *  •»  '^ 

-4—     O     -•     O  •-  .—     ^ 

a  ^  S  -M  o  -M'^ 


1802 
1862 
1802 
1802 
1803 
1863 
1863 
1862 
1803 

1862 
1802 
1862 
1802 
1803 
1803 
1802 
1863 
1863 
1803 
1803 
1802 
1862 
1803 
1803 
1804 
1863 
1863 
1803 
1803 
1863 
1863 
^803 
1802 
1863? 
1802 
1863 
1863 
1862 
1863 
1803 
1803 
1802 
,  1804 
1863 
1863 
1862 
1863 
1804 
1863 
1863 
1862 

1863 


$28, 874  5(1 

17,929  30 

84,222  (14 

33,496  70 

.58,212  00 

33,700  l(i 

33,  .574  07 

69, 841  87 

H)9,  409  75 

07, 483  90 

92, 973  50 

177,  873  30 

50,  83(>  50 

15, 519  90 

88,724  8H 

35,  .572  SKI 

02, 512  29 

22,531  ()« 

03, 330  20 

82, 05(J  29 

04,801  10 

80,  700  70 

8ti,  023  81 

22,  830  02 

65,  .503  12 

17, 090  04 

107, 324  04 

29, 7<i9  3tf 

38,  454  31 

40, 420  03 

88,321  88 

188,212  14 

93, 494  92 

43,527  87 

13, 918  75 

56, 107  00 

24, 408  34 

40. 7.52  71 

01,838  02 

20, 208  21 

94,340  19 

152,375  48 

200, 709  59 

1.50, 819  80 

200, 255  7;{ 

111,007  07 

227, 002  07 

113,308  0(1 

11,201  15 

50, 203  2(i 

120,610  00 

00,234  2(1 

0, 723  08 

4,480  00 

3, 537  07 


AMERICAN   ARGUMENT INTEREST. 


575 


1    « (-  -v 

o  S  2  2  - 


$28, 874 
17,9'29 
84,2'22 
;«,4itr) 
r)H,212 

;w,700 

•.J3,  r)74 

f)9,  H41 
109,  4C9 

()7,483 

9-2, 97;{ 
177,87:i 

r,(i,  8;«) 

15, 519 
88, 724 
35,  572 
62, 512 
22, 5'.U 
C:$,  330 
82, 05(i 
64,  SOI 
86,  7()0 
86, 623 
22,  830 
65, 503 
17,690 
107,  324 
29,769 
38, 454 
46, 420 
88, 321 
188, 212 
93, 494 
43, 527 
13,918 
56, 167 
24,408 
40.752 
61,838 
20,208 
94, 346 
152,375 
200, 709 
156, 819 
260, 255 
111,007 
227,6()2 
113,368 
11,261 
50,203 
120,610 
60,234 
6,723 
4,480 
3, 537 


50 
30 
64 
7U 
W 
16 
07 

75 

90 

50 

30 

50 

90 

88 

90 

29 

(■)(■) 

2i> 

29 

ir. 

76 

81 

02 

12 

04 

04 

30 

31 

03 

Hrt 

14 

92 


21 
19 

48 
59 
HO 
73 
67 

o: 

0(1 
15 
26 
00 
2(1 
OH 
00 
07 


Names  of  vessels. 


a 

"« 

o 
a 
o 

a 


1— I    !5  5^ 

o 


3 


A or<i  •...•>*••••• 

.Sliulight 

iJarou  do  Castiiio. 


$88,025  00 

11,245  00 

1,500  00 


March,  1863 

.Se]iteiiiber,   lb()2 
October,        1862 


6,-557,690  00 
Add  one-sixth  iu  order  to  increase  the  rate  to  7  per  cent 


o  o 

n  c-   , 

-w  3  --  t- 


*  =  c  5  *  sj'i' 

S  V  m  -f  C  -^  w 


§.55,  4.5,5  75 

7,421  70 

9-2  50 


4,063,217  18 
677,202  86 

4,740,420  04 


The  avcraja^e  time  for  the  computation  of  interest  on  the  value  of  the 
property  destroyed  by  the  Ahabamais  about  ten  years  and  two  mouths. 
We  have,  consequently,  the  following  comparative  results : 


Principal. 


Interest  at  7  per 
cent,  for        i  ! 
years  and  «wo  j 
months. 


Total. 


American  Statement j     $(!,  5,57, 690  00 

British  Statement 3, 267, 678  00 


$4,740,420  04   $11,298,110  04 
2,363,620  36  i    5,631,298  36 


Whatever  be  the  sum  fixed  by  the  Tribunal  as  a  base  for  the  compu- 
tation of  interest,  and  whatever  may  be  the  rate  that  it  decides  to  allow, 
the  average  time  for  the  computation  should  be  the  same  in  all  cases ; 
that  is  to  say,  ten  years  and  two  months. 

FLORIDA. 


S) 


■    ■"  c-  !-  «  o 
S  3  s«  +=-s 

•■^    /.I    «.    « 


^2  2  gS"?..* 
fl  V  P  >-•  k)*^  o 


Golconda )5il69, 195  92 

Rieuzi   |  20,726  00 

Ada 6,300  00 

Elizabeth  Ann 8,  ()r)0  00 

Marengo 7,746  00 

Riifus  Choate. 8,775  00 

Wanderer I  8, 389  00 

An<,'lo  gixon '  63,695  79 

lAvon !  183,851  40 

F.  Hoxie 1  115,155  00 

llirecnland i  47,170  00 

Southern  Cross !  79, 305  00 

Willliitu  C.  Clark j  29, 5.56  91 

Mary  Alviua 20,445  00 


July, 

July, 

June, 

June, 

June, 

June, 

June, 

August, 

March, 

March, 

July, 

June, 

June, 

June, 


1864 
1863 
1863 
1863 
1863 
1863 
18<i3 
18(53 
1864 
1H63 
l-'64 
1863 
1864 
1863 


§93, 0.57  7r> 

12,(i42  86 

3,874  .50 

5, 319  75 

4, 763  79 

5, 396  62 

5, 159  23 

38, 535  95 

104, 795  29 

72, 547  65 

25,943  .50 

48,772  57 

16,404  0« 

12, 573  67 


576 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


•  ,   I 


fn 


Name  of  vessels. 


s 
-a 

mm 
0 

i 

9 


Aldebaran 

Clarence 

Cor .  v. on  wealth. . . . 

Crown  Point 

Electrie  Spark 

Henrietta 

Jacob  Bell 

Lapwing 

M.  J.  Ccucord 

Red  Ganntlet 

Star  of  Peace 

William  li.  Nash., 

Oneida 

Windward 

Estelle 

Zelinda 

Umpire 

Mondamiii 

Corris  Ann 

General  Berry 

George  Latimer... 
Harriet  Stevens... 

Byzantium 

Goodspeed , 

M.Y.Davis 

Taconv 

Whistling  Wind.. 

Archer 

Ripple 


S;50,957  91 

26, 177  50 

470,  r>;$3  .'58 

4:r),073  00 

4<i8, 366  83 

73, 556  94 

421,986  40 

84, 085  00 

107, 896  21 

124,  -.75  94 

532, 128  65 

68,724  94 

471,849  12 

22,  .'>98  00 

24,925  00 

42,925  00 

35,.^>.30  00 

35, 549  00 

34, 485  00 

35,918  48 

49,831  33 

51,925  00 

63,240  51 

43,218  30 

18,604  00 

39,622  00 

12,594  10 

4, 300  00 

10,755  00 


£ 

i 

a  o.a.S  « 

5 

iZ> 

^ 
^ 

'S 

^ 

-W    a—    1;    0,    o 

s 

o 

■w 

gssg^-i 

■^ 

hH 

Ci  S  i  ;^.rs  :. 

March, 

1863 

•319, 503  4-t 

May. 

18(53 

16,230  It;' 

April, 

1863 

294,083  4rt 

May, 

1863 

270, 365  26 

July, 

1864 

257,601  7.^) 

April, 

1863 

45,973  (18 

February 

.  1863 

a67,96i  lit; 

March, 

1863 

50, 4.53  :,:> 

March, 

1863 

67,974  (ill 

June, 

1863 

76,752  70 

March, 

1863 

335,241  04 

July, 

1863 

41,922  21 

April  24, 

1863 

S94,905  TO 

January, 

1863 

14, 462  72 

January, 

1863 

15,052  0(» 

July, 

1864 

23, 608  75 

June, 

1863 

21, 8.50  0'^ 

Sept., 

1864 

19, 206  2t5 

January, 

1863 

22, 070  40 

July, 

1863 

21, 910  27 

May, 

1864 

27,905  .54 

July, 

1864 

28,  .5.58  7.'. 

June, 

1863 

38, 892  91 

June, 

186:3 

26, 579  25 

No  date. 

11,441  46 

June, 

1863 

24, 367  5:i 

No  date. 

7,745  37 

No  date. 

2,644  .50 

June, 

13(53 

6,614  32 

2, 792, 366  45 

)  7  per  cci 

It 

465,394  40 

3,257,760  <'■> 

4,616,303  93  , 
Add  one  sixth  in  order  to  increase  the  rate  to  7  per  cent 


The  average  time  for  the  computation  of  interest  on  the  value  of 
property  destroyed  by  the  Florida  and  her  tender  is  (about)  ten  years 
and  one  month. 

The  comparative  results  are : 


American  Statement. 
British  Statement. . . 


Principal. 


U, 616, 303  93 
2, 635, 573  00 


Interest  of  7  per 
cent,    for   ten 
years  and  one  > 
month. 


$3,257,760  85 
1,860,263  60 


Total. 


$7, 874, 064  7H 
4, 495, 836  W 


Whatever  may  be  the  sum  fixed  ''^  the  Tribunal  as  a  base  for  the  coin- 
putation  of  interest,  and  whatever  may  be  the  rate  that  it  shall  decide 
to  allow,  the  average  time  for  the  computation  should  be  t\e  same  in 
all  cases,  namely,  ten  years  and  one  month. 


If  or  tUe  coiii- 
shall  deciik' 
It^e  same  in 


AMERICAN    ARGUMENT — INTEREST. 
SHENANDOAH. 


577 


Names  of  vesHela. 


Abi{];ail 

Hrunswick 

('atherine 

Congress 

Covington 

Edward  Carey 

Euphrates 

Favorite 

(fcn.  Williams 

Gipsey 

Hector 

llillman 

Isaac  Howland 

Isabella 

Jireh  Swift 

Martha 

Nassau 

Nimrod 

Sophia  Thornton . . . 

Susan  Abigail 

Waverly 

William  Thompson. 

William  C.Nye 

Pearl 

Almira 

Europa 

Gen. Pike 

James  Maury 

Milo 

Nile 

Richmond 

Splendid , 

Australia 

Louisiana 


a* 

cs 
u 

o 

V 

a 


May,  ISG.'J 
June,  1865 
June, 1865 
June,  1865 
June,  1805 
April,  1865 
June,  1865 
June,  1H65 
June,  1865 
June,  1865 
April,  1865 
.Tune,  1865 
June,  1865 
June,  1865 
June,  1865 
June,  1865 
June,  1865 
June,  18C5 
June,  1865 
June,  1865 
June,  1865 
June,  18()5 
June,  1865 
April,  1865 


June,  1865 
June,  1865 
June,  1865 
June,  1865 


Names. 


S 

o 
-M 
a 

o 

a 

-t! 

|il(l0,.5:ll  7l> 
ion,  874  .50 

in{,(i7o  yo 

177,  .587  00 

88, 802  50 

72,047  70 

lt6,  846  .'iO 

169,693  44 

li;i,U05  85 

95, 457  75 

125,620  80 

157,  :i06  50 

205,951  00 

159,987  00 

107, 273  25 

129, 779  02 

181, 279  .50 

162, 124  87 

106,759  31 

.56, 993  37 

135, 655  25 

180, 968  75 

98,377  50 

55, 685  50 


>333,.5(»0  00 


3,263.149  .55   • 


Second  table. — Shenandoah. 


Claims. 


The  vessels  Edward  Carey,  Hector,  and  Pearl  were  cap- 
tured in  April,  1865  $253,3.54  00 

The  Abigail  was  captured  in  May 100,  .531  79 

The  other  vessels  were  captured  in  June,  1865 2, 909, 263  76 

Add  25  per  cent,  of  the  value  of  the  whalers 400, 127  91 

i 
Add  i  in  order  to  increase  the  interest  to  7  per  cent 

1  3, 66.3, 277  46 


e  s£ 


ii  gf  a 

»  §  «- i*- 


See  table  2. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 


Interest. 


$127,  943  77 

50,265  89 

1,440,075  .56 

202, 064  59 


1,820,349  81 
303,391  63 


2,123,741  44 


The  average  time  for  the  computation  of  interest  on  the  value  of  prop- 
erty (lestroved  by  the  Shenandoah  is  nearly  eight  jears  and  five  months. 
37  c 


W-''- 


■    If 

'iw   ' 
yit  •  ■ 
I. 


'H 


578  SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 

Comparative  Results. 


Amoricaii  Statoniont. 
British  Statoiuoiit  . . . . 


Principal. 


Interest  at  7 
per  cent,  for 
8  years  anil 
5  months. 


Total. 


$:?,  00:^, -JT?  4(5  I  *',M2:?.74l  44     S5, 737, 018  l»(l 
l,l71,4U4iJOi        G'.M),  L-'7  54  ,     1, H()l, G.'il  .^4 


If  the  Arbitrators  reject  as  double  claims  the  claims  for  insuraiice  iu 
column  five,  (5,)  the  American  Statement  will  be  as  follows: 


Principal. 


American  Statement $:?,  202, 0.'>7  4C) 

British  Statement '     ■,171,4G4  00 


Interest. 


Total. 


!|l,(n7,478  ;'.7 
m),  ls7  54 


S4.  820,  405  8:! 
1,8(51,051  54 


Whatever  may  be  the  sum  fixed  by  the  Tribunal  as  a  base  for  the  com- 
putation of  interest,  and  whatever  may  be  the  rate  that  it  decides  to 
allow,  the  average  time  for  computation  should  be  the  same  in  all  cases, 
namely,  eight  years  and  five  months. 


^^''UH!-   I 


Total. 


,787,  OH  '.)tt 


su ranee  in 


Total. 


4,  i?'20, 40.'")  AW 
l,^Gl,t351  54 


for  the  com- 

ileoide.s  to 

in  all  cases, 


XIII.-COMPARATIVE  TABLES,  PRESENTED  BY  THE  AGENT  OF 
THE  UNITED  STATES  ON  THE  19TH  OF  AUGUST,  18?>,  IN  COM- 
PLIANCE WITH  THE  REQUEST  OF  THE  TRIBUNAL. 


« 


In  accordance  with  the  instrnctions  of  tlie  Tribunal,  the  Agent  and 
Counsel  of  the  United  States  have  caused  tables  to  be  prepared,  show- 
ing the  differences  which  exist  between  the  statements  of  claims  and 
losses  submitted  to  the  Tribunal  on  the  part  of  the  United  States,  for 
the  estimates  based  on  these  statements  which  have  been  presented  on 
the  part  of  Great  Britain. 

The  claims  i)resented  by  the  United  States  are  supported  by  sworn 
.Htatemeiits  presented  by  those  who  possess  the  necessary  information, 
and  they  exhibit  in  detail  the  items  which  go  to  form  the  sum  total,  and 
the  names  of  all  who  have  made  reclamation,  whatever  may  be  the  sum 
which  the  Tribunal  may  see  fit  to  award.  The  claims  on  the  part  of  pri- 
vate individuals  thus  computed,  verified,  and  submitted,  are  supported 
by  all  the  guarantees  of  their  good  faith  and  their  validity,  as  well  for 
their  general  amount  as  for  the  other  facts  concerning  them  which  gov- 
ernments are  in  the  habit  of  requiring,  in  such  cases,  from  their  own  citi- 
zens. It  thus  appears  that  these  computations  show  the  entire  extent 
of  all  private  losses  which  the  result  of  the  adjudications  of  this  Tribu- 
nal ought  to  enable  the  United  States  to  make  compensation  for. 

In  certain  cases,  however,  there  is  reason  to  believe  that  more  claim- 
ants 'than  one  appear  for  the  same  injury.  In  such  cases  the  United 
States  have  impartially  presented  the  statements  of  all  the  claimants, 
intending,  when  the  proper  time  should  arrive,  to  endeavor  to  show,  from 
the  evidence,  what  sum  Great  Britain  should  injustice  be  held  to  pay,  by 
way  of  compensation  for  real  losses,  without  prejudice  to  conflicting 
rights.  We  have  done  our  best  to  prepare  tables  by  which  it  seems 
to  us  that  the  Tribun.il  must  be  enabled  to  determine  with  sufficient 
accuracy  the  amount  of  these  double  claims,  if  indeed  any  such  exist. 

It  is  not  easy  to  conform  to  those  instructions  of  the  Tribunal  which 
require  the  preparation  of  tables  which  can  be  compared  with  those  of 
Great  Britain.  While  the  American  statement  sets  forth  details,  and 
furnishes  the  Tribunal  with  all  the  necessary  means  of  making  a  minute 
I  examination,  vessel  by  vessel,  and  claimant  by  claimant,  the  British 
statement  is  a  generalization  based  on  certain  facts  which  are  taken  for 
granted,  and  which  exist,  in  the  opinion  of  the  authors,  in  the  commercial 
I  world.  It  is  not  therefore  possible  for  us  to  present  comparative  views 
touching  the  various  claimants  in  detail,  or  even  touching  the  various 
I  vessels  destroyed  by  the  cruisers. 

The  authors  of  the  British  statement  have  classified  our  claims  in  so- 
I  arbitrary  a  manner  that  we  are  forced  to  confine  ourselves  to  a  compari- 
son of  the  sums  total  contained  in  their  classified  tables.  On  our  side, 
a  knowledge  of  these  sums  total  is  reached  by  following  the  evidence, 
step  by  step ;  on  theirs  by  a  process  of  reasoning.  The  two  systems 
differ  so  widely  that  a  detailed  comparison  is  impossible.  All  that  re- 
mains for  us  to  do  is  to  beg  the  Tribunal  to  refer  to  what  has  already 
been  said  on  this  subject  in  the  American  Argument.  (American  Argu- 
ment, note  D.) 


580 


SUri'LEMKNTARY    AROl'MENTS    AND    STATF.MEN'TS. 


¥' 


■f  I 


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\Vc  iXiQ,  tliercforo,  forced  to  follow  the  British  arrangement  in  order 
to  compare  the  sums  total,  since  it  is  impossible  to  compare  our  views 
in  detail  or  according  to  any  combitiation  differing  from  that  which  is 
followed  in  their  arrangement.    Wo  give  their  classification  below  : 

A. — Claims  uriHitifj;  from  the  capture  of  whalfTH  or  tisliinjj-vflsaolN. 

H. — 8iniilur  clttiiiiH  urisiiijj  from  vossels  carryiiifj  carpws  compontMl  of  one  kind  of 
goodH. 

C — Similar  claiinn  ariwiiig  from  vohhcIm  carrying  cargoes  coinposful  of  various  kinds 
of  goods. 

I). — Similar  claims  arising  from  vessels  in  liallast. 

E  and  F. — Divers  claims  which  could  not  properly  be  placed  in  any  of  the  aho\e 
categories. 

Before  coming  to  special  vessels  we  desire  to  call  attention  to  three 
well-marked  points  of  difference  between  the  two  statements. 

(a)  The  United  States  ask  here,  as  they  have  already  done  in  their 
memorial  and  in  their  argument,  that  the  Tribunal  should  grant  them 
interest  on  the  sums  which  they  may  determine  to  regard  as  the  extent 
of  the  original  injurj',  as  a  necessary  and  iiulispensablo  part  of  the  in- 
demnity due  to  them  in  consequence  of  that  injury.  This  interest  ought 
to  be  at  the  ordinary  rate  which  prevails  in  the  United  States,  where 
the  damages  were  suffered  and  where  the  losses  are  to  be  indemni(ie«l. 
The  interest  should  be  computed  from  the  time  when  the  losses  occurred 
up  to  the  time  fixed  by  the  Tribunal  for  the  payment. 

(b)  In  the  American  statement,  especially  in  the  claims  arising  from 
the  destruction  of  whaling  vessels,  expected  profits,  or  "  the  prospective 
catch,"  is  included  in  the  computation  of  damages.  (See  American  Ar- 
gument, note  D.) 

(c)  According  to  the  arbitrary  assumption  of  the  British  statement, 
that  the  freight  claimed  by  the  United  States  in  the  name  of  their  mer- 
chant navy  constitutes  ''gross  freight,"  this  statement  rejects  all  claims 
for  freight,  while,  in  the  absence  of  any  evidence  to  the  coutrar5',  wo 
assume  that  these  claims  are  for  •'  net  freight." 

These  three  classes  form  in  the  sum  total  a  great  part  of  the  dift'erences 
which  exist  between  the  two  statements. 

In  accordance  with  the  suggestions  of  some  of  the  Arbitrators 
we  have  eliminated  from  the  tables  the  claims  submitted  in  favor  of 
whaling  vessels  for  the  "  prospective  catch,"  the  amount  of  which  would 
be  $4,009,302.50 ;  but  we  by  no  means  intend  to  withdraw  these  claims, 
or  to  intimate  that  we  do  not  consider  them  just.  On  this  subject  wc 
refer  the  Arbitrators  to  the  note  alluded  to  at  the  close  of  the  Ameri- 
can Argument.  Should  the  Tribunal  share  our  views,  the  claims  for  in- 
juries suffered  by  these  vessels  should  be  proportionately  diminished. 
In  case  it  should  not  share  our  ^  ie^^  m,  we  should  ask  it  to  grant  us,  as 
an  equivalent,  interest  at  the  rate  of  25  per  cent,  on  the  value  of  the 
vessel  and  equipments. 

We  have  been  obliged  to  trust  to  arbitrary  estimates  in  regard  to  two 
subjects,  because  there  is  no  sworn  evidence  in  relation  to  them  ;  viz : 

( A..)  The  pay  of  the  officers  and  crews  of  the  captured  vessels. 

(B.)  The  value  of  their  personal  effects. 

We  have  every  reason  to  believe  that  the  sums  total  which  we  submit 
to  the  Tribunal  are  for  the  most  part  correct  in  substance. 

(A.)  We  calculate  for  each  vessel  of  class  A,  whose  burden  did  not 
exceed  300  tons,  one  captain  at  $150  per  month  ;  one  first  officer  at  $100 
per  month ;  one  second  officer  at  $75  per  month ;  one  third  officer  at 
$60  per  month  ;  one  fourth  officer  at  $50  per  mor  th  ;  four  helmsmen  at 
$40  each  per  month  ;  four  helmsmen  at  $30  each  per  month  ;  and  four- 


AMKUICAN    TABLES. 


581 


B  (lifferenct'S 


tecii  men  at  $1*0  eacU  per  month  ;  ami  wo  calculatt^  onoi  additional  man 
at  $20  per  month  for  every  lifteen  tons  in  oxcohs  of  300  tons. 

In  the  statements  rehitive  to  the  vessels  dewij^nated  under  letter  A, 
there  is,  in  the  annexed  tables,  a  calculation  of  wages  which  exceeds 
the  correct  sum  of  $1L'0  per  month  for  each  vessel.  The  error  is  cor- 
rected at  the  end  of  the  respective  columns  of  each  table,  and  the  sum 
total  is  finally  stated  corre<!tly.  The  error  was  not  discovered  in  season 
to  correct  it  in  the  detailed  statements,  without  again  subjecting  the 
Tribunal  to  the  inconvenienci^  of  a  delaj'.  . 

For  each  vessel  of  classes  L,  C,  D,  E,  and  F,  whose  burden  did  not  • 
exceed  300  tons,  we  calculate  one  captain  at  $150  per  month  ;  one  first 
officer  at  $100  per  month ;  one  second  officer  at  $7")  per  mouth ;  and  ten 
men  at  $20  each  per  month.    For  every  additional  30  tons  we  calculate 
an  additional  man  at  $20  per  month. 

The  wages  are  calculated,  except  in  certain  s[>ecitied  cases,  from  the 
(commencement  of  the  voyage  up  to  the  time  of  the  capture,  and  when 
the  capture  took  place  in  the  Atlantic  Ocean,  or  when  the  capture  of  a 
vessel  whose  owner  resided  on  the  Pacific  coast  took  place  in  the  Pacific 
Ocean,  they  are  calculated  for  six  mouths  additional ;  for  nine  months 
additional  when  the  owner  resided  on  the  Atlantic  coast,  and  the  cap- 
ture took  place  in  the  Pacific  Ocean.  This  additional  sum  is  to  pay  the 
expenses  of  the  return  after  the  caitture,  and  of  the  time  passed  on  the 
way. 

(B.)  In  some  cavsesthe  officers  or  men  have  presented  claims  for  the 
value  of  their  persc'uil  effects.  We  have  submitted  no  claim  for  such 
persons  in  the  general  table  under  the  name  of  each  vessel.  When  no 
specijil  claim  is  presented  we  submit  a  general  claim,  according  to  the 
following  estimate,  viz,  for  each  captain  $1,000;  for  each  first  officer, 
$750;  for  each  second  officer,  $500;  for  each  third  and  each  fourth  of- 
ficer, $250 ;  and  for  each  helmsman  and  each  seaman  $100 ;  we  consider 
thes>e  estimates  moderate. 

It  remains  for  us  to  explain  the  annexed  tables.  The  detailed  tables 
contain  six  columns,  numbered  respectively  1,  2,  3, 4,  5,  and  G.  Column 
1  contains  the  items  which  form  the  sum  total  of  the  claims  under  the 
name  of  each  vessel  captured.  We  give  the  name  of  each  vessel  capt- 
ured, its  burden  and  the  claims  which  were  presented  in  its  behalf  on 
the  15th  of  April.  We  add  a  statement  of  the  sums  which  must  be 
subtracted  from  the  sum  total,  and  of  those  which  must  be  added  to  it, 
according  to  the  rules  which  we  have  established.  Column  2  shows  the 
said  sum  total,  without  the  "  prospective  catch,"  the  "  expected  profits," 
or  the  "  breaking  up  of  the  voyage."  It  embraces  the  sums  which  arc 
detailed  in  columns  3,  4,  and  5.  Column  3  shows  the  claims  lor  in- 
surance which  are  undoubtedly  uot  double  claims.  Column  4  shows 
certain  claims  for  insurance,  in  regard  to  which  the  evidence  is  silent. 
It  is  possible  that  some  of  these  should  be  deducted  from  the  sum  total 
of  column  2  ;  this  can  only  be  determined  by  an  examination  of  the  facts 
in  each  case.  Column  5  shows  still  other  claims  for  insurance,  accord- 
ing to  which  the  owners  of  the  property  insured  claim,  at  the  same 
time,  full  indemnity  for  their  losses,  without  regard  to  the  insurance  em- 
braced in  this  column.  It  is  for  the  tribunal  to  decide  whether  these 
claims  should  or  should  not  be  deducted  from  coluuui  2.  Column  C 
contains  remarks. 

The  decisions  rendered  by  the  tribunal,  in  relation  to  the  Georgia, 
Sumter,  Chickamauga,  Tallahassee,  Ketribution,  &c.,  have  necessi- 
tated a  modification  of  the  certificates  of  the  Navy  Department  of  the 
United  States,  touching  the  national  claims,  which  certificates  w  ere  pro- 


582 


SUrPLEMENTARY   ARGUMENTS    AND    STATEMENTS. 


duced  according  to  the  provisions  of  the  protocol  accompanying:  the 
treaty  of  Washington.     (American  Memorial,  French  text,  page  3.) 

In  the  annexed  tables  this  modification  has  been  made  by  deducting 
from  the  sum  total,  submitted  December  15,  1871,  the  expenses  caused 
by  the  acts  of  vessels  for  the  acts  of  which  the  TrilMuial  has  decided 
that  it  could  not  hold  Great  Britain  responsible. 

The  summing  up  shows  the  sum  total  of  the  claims  now  submitted  on 
the  part  of  the  United  States,  including  the  "  prospective  catch,"  and 
the  sums  total  embraced  in  the  classified  British  estimates  submitted  in 
the  Counter  Memorial  and  in  the  Argument  of  Great  Britain. 


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XIV -TABLES  PRESENTED  BY  THE  AGENT  OF  HER  BRITANNIC 
MAJESTY  ON  THE  lOTH  OF  AUGUST,  187:>,  IN  COMPLIANCE 
WITH  THE  REQUEST  OF  THE  TRIBUNAL. 


E!     ■ 


l'  .,  I    HfcRi 


PRELIMINARY  STATEMENT. 

Ill  presontiiis;  the  siibjoine»i  tal>lcs  to  tlie  Tribunal,  as  required  by  the 
Arbitrators,  the  Agent  of  Her  British  Majesty  iuis  tiie  honor  to  pre 
sent  the  following  points  as  deserving  their  attentum : 

I.  Great  liritaiu  should  not  be  considered  bound  to  inaive  eonipensa- 
tion  to  the  United  States  for  the  sum  total  of  the  losses  occasioned  by 
any  of  the  cruisers  in  .egard  to  winch  the  Tribuiuil  may  be  of  the  opiii- 
ioil  that  tliL  e  was  remissness  in  the  perfornuuice  of  duty  on  the  part  of 
Great  Uritain. 

II.  The  following  principles  .should  be  observed  in  estinuitiiig  the 
amount  of  compensation  : 

A.  All  double  claims  for  .simitio  louses  should  be  rejected  :  such,  for  ex- 
ample, as  claims  presented  simultaneously  by  owners  and  insurance 
companies,  simultaneous  claims  for  loss  of  freight  ami  loss  of  chartcr- 
])avty,  and  other  similar  claims  mentioned  on  pages  10  and  11  of  volume 
VII  of  the  British  Appeiulix,  .iiul  which  amount  tc  a  very  considerable 
sum. 

B.  Claims  for  pros])ective  gross  losses  of  wliplers  shouhl  be  rejected, 
for  the  rcjisons  stated  on  pages  12, 13,  UO,  and  157  of  volume  VII  of  the 
Appendix.  It  is,  in'\'cd,  not  even  attemi)ted  to  sustain  these  claims 
in  the  Argunu'ut  of  the  United  States;  they  should,  therefore,  be  con- 
sidered as  virtually  abauv«oned. 

C  It  is  impossible,  for  the  reasons  stated  on  page  1.?  of  the  same 
volume,  to  admit  the  <;laims  for  gross  acquired  prolits  without  any  of 
the  necessary  deductions. 

1).  Claims  for  f/ross  freights  of  menjhant-vessels  should  be  rejecteil. 
for  the  reasons  stated  in  t.rteiiso  nn  pages  11,  '~»,  1(>,  an«l  17  of  the  same 
Aolunu\  It  will  be  seen  that  it  is  not  even  att'  iijtteil  to  sustain  them 
in  the  Argument  of  the  United  States,  and  they  should  therefore  be  con- 
sidcH'il  as  virt\iMlly  abaiuloned. 

IC.  Trofits  which  it  was  expected  to  gain  on  merchandise  in  the  ports 
to  which  the  vessels  wero  bouml  jire  not,  for  the  reasons  stated  on  jiage 
17  of  the  same  \olume,  a  proper  subject  of  compensatu)n. 

y.  Tlu'  reasons  stated  on  the  pages  afoi-esaid  of  the  same  volunu)  ol 
the  British  Appendix,  as  well  the  Ihinlyestablished  piinciph's  of  juris- 
prud<'nce,  whicli  are  recognized  \\.  the  couvts  of  the  United  States. 
England,  ami  otlu'r  countries,  ve(]uir",  as  a  suitable  means  of  compeii 
satiiig  clainumts  for  tho  loss  of  vessels,  (Uitlits,  [»rofits,  ami  freights, 
that  they  should.be  allowed  the  full  original  value  of  these  vessels  and 
of  these  outhts  at  tho  bogiiuiing  of  eacli  voyage,  and  that  they  should, 
moreover,  be  allowed  so  much  per  ce-.it.  of  this  valiu»,  t(»gether  with  a 
sum  for  wages,  to  bo  calculate«l  from  tho  beginning  of  each  voyage  up 
to  the  day  of  tlu^  capture,  as  has  been  stated  on  pages  13  to  17  and  -'i 
to  29  of  vohune  VII  of  the  Ai)pen<lix. 

G.  Tlie  proper  method  of  indemnifying  the  claimants  for  the  loss  otj 


I3UITISH    TABLES. 


611 


[TANNIC 
[>L1ANCE 


red  hy  thf 
nor  to  pre 

compensa- 
asioned  by 
)f  the  opi li- 
the part  of 

i mating  the 

siuh,  forex- 
vl  iusuranee 
i  of  chartcr- 
11  of  vohnne 
considerable 

be  rejected, 
15  V 11  "of  the 
these  ehiin\s 
cfore,  be  eo:i- 

of  the  san\»' 
It  Wont  any  of 

be  rejecteil. 

It  of  the  same 

Isustain  them 

'refore  be  eon- 

le  in  the  p«»rts 
jtated  on  i>a}it' 

Lve  vobune  ol 
]iplfs  of  jnris- 
fuited  fc*tates. 
lis  of  eonJiK'ii 
and  freiglds. 
Ise.  vessels  ami 
tliey  sht)ni<l. 
tetlier  witii  a 
p'h  voyage  wv 
V)  to  IT  and  -'' 

for  the  h)ss  of 


tixeir  Jiierehandi.^o.  and  of  the  profits  which  they  expected  to  realize, 
would  bo  to  allow  theiii  the  value  of  such  merchandise  at  the  port  of 
shipment,  together  with  the  uitertst  on  this  same  value,  calculating 
from  the  commencement  of  tlie  vo^  age  up  to  the  time  of  the  capture. 

in.  It  is  impossible,  for  the  reasons  stated  on  page  17  of  the  afore- 
mentioned volume,  to  trust  to  tlie  value  ]*laced  'jy  tlie  claimants  them- 
selves upon  their  property ;  and,  after  having  applied  the  above  princt- 
jdes,  it  will  be  proi>ci"  to  make  a  suitable  deduction  from  these  claims,  in 
order  to  reduce  them  to  the  sum  to  which  they  would  be  reduced  if  they 
were  referred  to  assessors,  or  to  the  sum  to  which  the  Government  of 
the  United  States  would  reduce  them,  in  case,  a  gross  sum  having  been 
ullowed,  this  C'overnment  were  to  distribute  it  to  the  claimants. 

IV.  The  necessity  of  this  new  reduction  will  appear  from  the  follow- 
ing" considerations : 

A.  The  United  States  now  admit  that  these  claims  have  never  been 
carefully  sifted.  It  is  hardly  necessary  lO  call  attention  to  the  capital 
im]>ortance  of  this  admission. 

J>.  It  has  been  clearly  shown  that  the  claims  are  exafjjierated,  and 
th.it  the  statenu'nt  of  the  claims  contains  very  co'isiderable  misci>lcu- 
lations. 

C.  The  information  furnished  by  the  revised  statement  of  the  claims 
is  not  suffici(!nt  i  >  permit  the  value  of  the  pr()i)erty  for  whi(;li  compen- 
sation is  claimed  to  be  estimated  with  sufficient  certainty. 

I).  There  h'  an  entire  absence  of  the  ordinary  documents  which  mif^ht 
prove  the  value  of  the  merchandise  and  freights,  such  as  bills  of  lading, 
manifests,  polieies  of  insurance,  «S:e.;  and,  although  it  is  asserted  that 
these  documents  have  been  recorded  at  Washinjiiton,  the  (lovernmeut 
of  the  United  States  has  never  (!om])ared  them  with  the  claims. 

V.  The  amounts  of  the  claims  being  tilmost  always  stated  in  i)aper 
money  or  pajier  dollars,  and  the  ninth  article  of  the  Treaty  requiring 
that  the  compens^.ition  should  be  allowed  in  gold,  it  is  essential  to  estab- 
lish the  velati^  e  value  of  the  paper  dollar  and  of  the  gold  dollar  at 
the  tiuie  when  thi^  claims  were  first  prepared.  It  is  evident,  judging 
from  the  relative  valiu\s  stated  in  one  or  two  of  the  claims,  that  this  is 
a  <piestionof  very  consi4lerable  importance. 

Table  No.  1  gives  a  list  of  double  claims  ]>rep,ii'«'d  o])enly  and  ex- 
pressly, and  which  are  obvious  to  any  one  rea«ling  tlie  stat«'ment  even 
cursorily. 

Table  No.  II  gives  a  list  of  all  the  claims  for  gross  ]>'()spective  profits 
and  gross  freights  in  the  caseof  Ihe*  .\labanni. 

Table  No.  Ill  contains  an  analysis  of  the  rlaims  connected  with  whal- 
ing-vessels eai»tnred  by  the  Alabama;  a  note  has  been  ajtiiended  ex- 
plaining the  table. 

Table  No.  IV  contains  an  analysis  of  the  claims  connected  with  n>er- 
ehant  vess«'Is  captured  by  the  Alaba'ia. 

Table  No.  V  contains  a  re('a|»itnlatn)n  of  the  ])rovisional  claims  an<l 
allowances  eontiected  with  the  Alabama;  a  brief  explanation  of  these 
allowaiKM's  has  been  a«lded. 

Table  X(».  \'l  c«)ntains  an  iuialysis  of  the  claims  connected  with  the 
v«'ssels  (.'aplnred  by  the  Florida. 

Table  No.  \'il  contains  a  rcv'apitnlation  of  the  provisional  claims  and 
allowances  connected  with  the  I'loriila;  a  short  explanation  of  these 
allowances  has  l>een  aihled. 

The  following  are  the  cases  in  whiith  d(mble  claims  or  other  unjust 
rlaims  have  been  openly  and  designedly  nnide  in  the  statement.  In 
almost  all  cases  double  claims  are  advanced  tacitly  or  by  implication. 
Some  of  these  claims  will  be  searched  for  and  enumerated  elsewhere. 


612  SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 

Table  No.  I. — List  of  douhk  thtimf. 


i     5 


>  c 
."S 


UK 


68 

:■« 

".U 

ni 
111 

115 


•r(3 

'J37 

•i40 
•J43 

•J44 

'-'47 

■J48 

•JtlO 

■-'41 
17."> 


Name  ol'  vessel. 


Levi  Starbiirk  . 


Sea  Lark 

K()('kini:liani. 
Sou  liiide 


TalUinan  ... 
F'lion  Jack. 


Virffinia 


Martha 

Bniuiiwick. 


Edwaril 

Ktipliratt'.s . 
Favorito . . . 
Gipsey 


Hoctor 

Ilowlaud 

Isabella 

Nassau 

Niiurod 

S.  Thornton  . . 

Waver  U\v 

W.  Th'mipMoii. 
G.  Williniiis.. . 
Golcunda 


Total. 


Amount 


$2.1, 350 
1,000 
2, 150 

40,  ■i.ilO 

r>4,  .500 
.50,  000 
37,000 

If),  (km; 

8,000 
13,  ;>50 


34.  200 
24,200 

10.  875 

!»,  7.50 

.50,000  ' 

24,0U0  j 

31,  875  ' 
00,  .500  ! 
22,  t>50 
72,  .5(MJ  ' 
28,000 
27,  0.50 
31,2.50 
54,300 
K),  34C  I 
25,  734  ! 


JifUiiii'kn. 


It  Is  admitted  that  this  sum  sliould  have  hocn  deducted  for  insuraiici' 

received;  it  has,  however,  not  been  dedu<^ted. 
Sum  whieli  Ostjood  &.  C\>.  admit  that  tliey  received,  but  which  tlie\ 

have  not  phieed  on  tlie  credit  side  of  tlieir  account.  m-i  | 

Sum  eiiuivulent  to  tl.5tt5  in  gohl,  which  Air.  iiollius  admits  tliat  be 

received,  but  which  ho  does  not  place  on  the  credit  .side  of  tin' 

account, 
'riiat  is  to  say,  twice  $24,710,  which  sum  it  is  admitted  ouiiht  to  \>r  ilr- 

ducted,  but  which  lias  been  adde<1. 
Claim  actually  advanced  twice  l)y  the  ^nmo  owners. 
Do.ibic  claim  explained  on  pa^e  —  of  our  first  report. 
Kufub,  Greene  &.  Co.  refuse  to  place  the  sums  received  for  iu.suraiic- 

on  the  credit  side  of  the  account. 
The  owners  acknowledge  that  they  received  this  sum,  but  it  is  nn' 

placed  on  the  credit  side  of  their  ac<-ount. 
The  owners  claim  the  full  valne,  witliout  making!  allowance  for  tli'' 

sums  received  for  insurance,  and  the  iusurauce  companies  claim  it 

at  the  same  time. 
The  owners  claim  the  full  value,  without  iiinkin<;  allowance  for  tli.' 

sums  received  for  insurauce,  and  flie  insurance  companies  claim  i' 

at  the  same  time. 

The  owners  and  insuranc<*  companies  openly  claim  the  .sums  at  ili.- 
same  time. 

l»o. 

Do. 

Do. 
Till'  neccssit.v  of  deduilinj;  this  siiiii  is  admitted,  but   it  !.•<  iu>t  df 

ducted. 
Double  claim,  as  above. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 
The  sum  of  ^I4,ti73  has  bei'ii  added  hen-,  instead  of  bcinu  ib'du[t<'d. 
Double  claim,  as  aboM'. 


8(ii»,  400 


Taiilk  No.  II. — Claims  for  grons  frcifjiits  atid  vx^xcUd  profits  in  the  case  of  the  Jlahama. 


c£ 


8 
13 

an 

2fi| 

27  I 
29  i 


Name  of  vessel. 


Claim  for- 


Anionnt. 


llemnrks. 


..     .  ^    Loss  bv  interruption  of  voyajie.      #30,000 

■^'     "' I     Loss  ot'  probable  catch ! 1 44,  8li«     A  ni'w  cljiiin  presented  in  tin' i  • 

vi.sed  stateuu'nt. 

Altanmha do 1!t,0in 

Amanda Loss  of  freiubt 33.  IMIO     The  value  of  the  freislit  is  nut 

!  distinguished  from  that  of  tlie 

I  vessel. 

Amap.onian Loss  on  eharter-i)artv 11.000 

.  <  1      •  w       5     Loss  of  lrei)ibt ' ti,  300     110.000  are  also  cininied    as  ad- 

-'*^"""^''""""''-- )     Insurance  on  charter-party 20, 1  MO         vances  for  the  owners  of  tlie 

ve.ssel. 
Benjamin  Tucker.    Loss  of  expected  profltH 100,800     .See  the  original  list.  p.  434. 

UrillL-int Loss  of  freight j        {Ij|;';;I,',  '**'• 

Charl.w  Hill do 1 1!  733 

Contest do til, .5110     See  the  first  statenieiil,     A  imv 

claim  presented  in  tlii'  revisid 
i  I  I      stutement. 


imiTISII    TABLES. 
Taiji.k  No.  II. — Churns  for  grona  nceipts  and  expected  profits,  <Jc. — Contiuucil 


613 


,  for  iusuraiu  •• 

ut  which  tht\\ 

iiiliuits  that  he 
lit  .side  of  tli«' 

ouoitit  to  111'  <'"■- 


I  for  iusuruii'-'- 
11,  but  it  18  n«" 

owance  for  tli" 
paiiU'S  ilaiiii  it 

lowaiu'o  for  th.- 
ipaiiifs  t  laim  " 

till'  sums  at  ill'' 


lit   it  i*  "I't   'h' 


liciiiu  (h'tluctc'l. 


//((■  Aliihamo. 


vVn. 


Iltrtl  ill  till' 


IMlt. 


^  B 

.'•5 


:<i 
:« 
:t4 

37 


40 
41 
41; 
47 

4!) 

54 


.'■.it 
CI 


70 
71 

7;« 
74 

70 


7.-( 
M) 
00 
•II 
!>,'i 
!H.I 
110 
It") 

III) 
117 

VIS 


Xanii'  ol   vcsMcl. 


Courser 


Claim  for — 


L088  by  intoiTUi>tioii  of  voyagt- 


Cronsliuw Loss  of  frcijjlit 

llorca»  I'liiicc | ilo 

Dunkirk ; <h> 

K.  Duubar Loss  by  iutorrniition  of  voyagt' 


Kmnia  I.uiu* 
Express 


<     Loss  of  rharter-part  V 

' '  i     LoNH  of  tho  ( oiiiiuirisiun  on  char- 

tfi-iiarty. 
Loss  of  fri'ijjht,  (at  least) 


(roiih'ii  Ka^lo (hi 

Gohlen  Kiih", Loss  <if  frcifflit 

IlichhiniU'r ilo 

Jabez  Snow ,  Loss  of  charter-party,  (liiilfnKrei'il 

'      upon.) 

.John  A.  Parks .....  Loss  of  rliarter-party 

Knto  ('ory ,  Loss  of  probal)lu  eateh 

Kingtisher I ih> 

Lafayette Loss  of  fi'eif;Iit 

Lafayette  'M |  Loss  of  probable  catch 

Lainplifrliter Loss  of  frei};ht 

Lauretta ' do 

Levi  Starbiick Loss  of  freight  and  prospective 

i      cateh. 

Louisa  Hatih Loss  of  freight 

Manchester do 

Nora do 


Amount. 


Xyo '  Lr>Rs  01  frei;:lit  and  prospect  I  ve 

i      catch. 

Ocean  Kover do 

Oemiilgee ; do 

Olive  Jane Loss  of  freight 

Parker  ("ook ; «U) 

Ko<'kingham ' do 

Sea  iiridi' do 


Sea  Lai'k . 
Sonora . . 


.do 


Loss  of  charter-party. 


Starlight '  ("barter-party. 

Talisman Loss  of  freight 

T.ll.Wahs do 

Tycoon i do 

T^nion  Jack do 

Virginia '  Loss  of  freight  and  prospective 

I      catch. 

Wave  Crest Loss  of  freiglit 

Weather  (j  age ;  Loss  by  abandonuu^nt  of  voyago 


Winged  Uacer . 


I 


Loss  of  freight. 


Total 1.87H,  4iW 


*!!),  84.'-. 

fi,  Til 

!.->,  000 

;i,  ICIli 

8S,  200 

20,  4;i8 

i,:i24 
.11, 120 


30,000 
f.  207 

Ort,  402 
•J,  408 

42, 30fi 
lil,  2!>4 
12,000 

lK,il7H 

4il,  Hitfi 

8,780 

3,000 

18i»,  312 

l.j,  000 
l.->,  0(M) 
l.">,  000 


30,  342 


Ueniarks. 


37,  f  on 

lti.-|,  .'ilO 

1.-.,  (too 

1,  t)2.'> 

78,  128 

21,  000 

23,  :m 

33,  244 

1,720 

38,  .570 

1.1,  10,'i 

33,  73!) 

0,000 

103,  050 

4,  772 

18,000 

24,  000 

A  new  claim  presented  in  the  re- 
vised stateuient. 


Claim   increased   in  the  revi.si'd 
statements. 


Tim  value  of  the  freight  is  not 
distinguished  from  that  uf  the 
vessel. 

Do. 

Do. 

Vessj'l  in  ballast.  See  tirsl  re. 
port,  p.  0. 


There  is  distinct  ion  made  bet  ween 
the  value  of  the  freight  and  thut 
of  the  vessel. 


.See  the  first  report,  pp.  23  and  21. 
There  is  distinct  ion  made  between 

the  value  of  the  freight  and  that 

of  tho  vessel. 


New  claim  presented  iu  the  le- 
viseil  statement. 

The  value  of  tho  freight  is  not 
separated  fnnii  that  of  the  ves- 
sel. 


-lie  IVeialit   is   »"' 
|l  from  that  ot  tli'' 


Much  more  than  tho  total  claim  prepai.vl  in  relation  to  the  Alabni'ia. 

The  claims  for  expected  prolits  amount,  for  tlii^  thirteen  whalers,  to  ^080,075,  or  to  nioro  than  oue- 
elghth  of  the  entire  clain  prepared  in  relation  to  the  .Vlabama. 


r     ff 


lo  clirniicd    a 
Ibc  owners  o 

[1  list.  p.  4:'t- 


i  tiM 


Itateiiieii 


I .     A  III 


.i|  in  the  revisn 


614 


SUPPLEMENTARY   ARGUMENTS   AND   STATEMENTS. 


.'♦ 


■a 


-^ 


9 


f 


H 


"O  aj  x 

S  "a 

es  «  a 

O 


a 

a 

S 


0 


a 


I. 

a 

CO 

a 
2 


I 

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I 

M 

£ 

a 

6 

"s 
U 


a 


I- 1- 


CO 


S 


^i 

LT 


9 

in 


2     i:? 


a 


S 


oi         SI 


:-3 


•  s 

•  o 


C.  I- 


•r  irt  o       O  (Tl 


nB " 


:  m 

fff-.- 

'I 

(X.  C9  (X)  GU 

r-  ^        o        •-• 

t-l  Ft 


s 


in 

n 

a-' 


*  00 


2      S 

1^        o> 


■s 

5: 


s? 


1"  1-10  01 


§iTlff« 


5 1-  I-   I  c  M  rt 

S2 '  I  SJSif 


^11 


I  56  o 

S3  3 


o  £  i.-!  o 


r-  1- 
t-i- 


•o3«A'oA 
J  9  q  ni  n  ft 


SS!       9 


n 

s 


?! 


s 


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a 


8 


55 


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o 

CI 

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a 
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e 

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k 

o 


tl 


a 


ce 
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c4 

I 


a 

5 


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51 


•«»»Bjl   ««     8     S     S 


3 


S     ^     S 


a 


BRITISH   TABLES 


615 


?!  .rs       I  - 
« o       If 


M  O 


? 

^ 

o 

5  t-i- 

*—■ 

s*s 

a 

'  S     ': 

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w 

,    y 

V 

.  e 

3 

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a 

«  s 

^ 

i^  i 

_.^^ — ■■ — ,——- 

?,            2 

§ 

2 

s 
'5i 


•3 

,2 


CO  c* 

'  t  •-  f  ^  ?^  ~ 

12   ' 

2' 

iilfsl 

i 


616 


SUPPLEMENTARY  ARGUMENTS  AND  STATEMENTS. 


.f 


l!>    ' 


i 


s 


,2 


I 

s 

n 
^ 


H 


^       n       n 
o        c*        ^ 

a      'T      ot 


I     a 


«  -H  ^  '^  ■*  lit 

i-  (*  -^  to  i-  -N 


^J»  T»  Lt  1-1 


?"     SfSif     S" 


S3 


=  2.1 


<2i 

a 

3 


3      S 


TO        moo 

«-  TO 


(COO 

at 


3 


-HO  1- 

OO  -U 

■^  O  -H 


;a 

•  ;^ 

:3 

.  s 

•  o 


O  'J  -1* 

oom 


?5S^ 


;5  3> 


—  rt  O; 


<-  — C5 
iO  *»•  so 


CJ  I»  «  'O  ID 

r-  (f«  o  I-        o 

in  LT «-  (-       t? 


?5  »rs 


a  :  :  ;  : 

3  ;  i  :  ; 

y  I  •  .  t 

£>  !  !  i  : 

^  II'.! 

s  .  <  .  . 

o  .  •  .  . 

a  I  ;  I  : 


tft  Si 


O  -H  Q  too 

t-  o  o:  n 


?i  o  t-  e»  o 
.t  o  o  o  o 

— lO  (M1"0 


11  (^  -H  o  00 


o  in 

00 


§o-r  o  ooot-o 

o— "  o  222^2 

O')'  O  OOOTO 

insfo"  o"  'n"o"t7iQ"a5' 


Ci        o  o  o  <: 


OOltfS 


•eSn.CoA.  JO 
8.«Bp  JO    ox 


S 


S     5' 


■  :  ;  a     : 

:a     ; 

...   3           . 

;  a 

■     •     •  «           • 

.     Q 

I      .     .    XI 

.   V 

:  1  ix>     ; 

'.^ 

■  s 

ilia    : 

!a  ■■ 

oo        o 

« 

•oSuunox 


■S  T 


o 
u 

a 


o 


;i5 


o  o  o        m 


H  OrH  Cl 


»3      o 

a     a 


1 

.a 


'3 


a 

.s 
•>1 


a 
a 
hi 
ts 
S 

a 


X 


^  s  a 

g  0)  s 
MOO 

WO 'J 


a 
.a 

n 


s 


')naai        1    |, 
a)«)8j033i)j  I 


S     £T3i     ^     ^?i?i     Pi 


X  o  —        w 


imiTISir    TABLES, 


617 


a  S  ?•  ri  ^  rt 
*?!       Ti  •»  rr  X 


*.  te  1?.        1 -. 


n  X  ^ 


O  '^  X 

5  — ii 


it 


s 


o       2 


:  J 


S 
S 


g 


Jo 


s 


cs 


At 


§15 

51  X" 


^ 


ra  ^ 


'it 


X  3  OO 


c  ■■■5  o  o  o      o 
o  ao  -^  -jl »      i5 


£■■= 


\r.  i.-5 1.-5 1.; 
•r  2  »i '  • 
Si  r:  It  X 


?i  o  71 

».-5  •?•  ?» 


O  3 

3  S 


O  Q 


o  S  5  r. 
3  oo  T 


S'-?S**i 


T    S-r  Z,    71   "T 

.t  a  S  3  s  .= 

_  S  »-  btu:  - 

S  a  »  s  »-  r 

■3  =  £  S  «  = 


1-!  O 


:=^'.il-2:: 

(S  i.—  ^  ®  • 
-- i'-glS 

f  o  If  3  t^';: 

>  3  =  »-Ji  — 
-■  '5  — —  ?  5 

^^'=::  -  « 

=  --g2iiii 
s  2  »      '*  *- 

i"  fe  £  '3  ■■"  - 
-^  P       o:  *  r 


»  t 


^  —  a 


H^- 


P  .=  *:  IS  .  ®  2 

TO    9—  ♦^  =.c~ 


^  p  S-.  ■ 


?i"- s?r  2    ;! 


=■    '.2 


:3 

•  s 

•  o 


i  §,  c  ■-=  S  > 

^    <•<   3   (m    ^  "^ 

H  5J  c  >  - 


5    »   S  5;    3j    I 

5  ■";  »  «  c  1 
<5  g-  "  X  > 

.2  =  uJ.=  J 


2  =  a  ii  - 
-  it  «'  S  =  ■=    r- 


i^l 


L";  o  ift 


n  *i  i- 


SO  O  ^  S  M 

L-5  «  o      o  rf 


sat: 


S 


s 


S22      S 

X  I-  —  Tt 


QQ 


3  3  rt  «  «  o 

l-5l-5hJl-5l-5>-? 


a 

el 


fii 


o 

>5 


Sir;  '' 
OAhPh 


cs 


•3 

I 


C-.  »<  ^  f-  rui 
^  m  "O  rt  in  » 


!f2      .t 


OUOOOi  C. 


1,  X  tcj  i^  _  ST  — 
£  i"g  fc  «^  - 
1)  >  £  ^  3  -    - 

is  s  r^s  J  : 

■^  9  S  3  i  '■  — 

.5ofe  tt^  -/ 
■r  —  '-^  —  -I  ■:  = 

—     u   «  2   =  3  -  •= 

.  *.=  .=    .is^- 

«  c  _a  _2  >,  _  - 

■^  .3  J  ja  £.  5.  i. 

r  E  -  -  2  5  " 

,-,  S  «  X  E  ?  I 

fl.  -3  ■«  "x    3i         5r 

-■  pH   -•   -•   .       •  ^ 

"■^       -t^  «^  X   1<   ^ 

If   j;  X.S-«.   ~  ^ 

"^^f ill 

.♦;  »     ^  cs  s;  £ 

°  B-=;:  SP- 
SS M3=i:  i" 
B    ,  .5  o  ^  — -= 

«-  x-3Sx5  2 
«  1*  S  a  Ji,   •£ 

'^  «  q  .3  a  *-  ® 


618 


SUPPLEMENTARY   ARGUMENTS   AND    STATEMENTS. 


^ 

T 


ft 


^ 
O 


t8 


=  a 


i 


S 


s 


—  o 

1:3 


2 
I 

u 

a 
o 


8 


5?     :.-! 


IN 


C 

be 


^ 


s 


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iZo'c-.o 
I--*  v  •^'  p" 
01 


;3 


i 

§ 

i3 

^ 

•   3 

:a 


o  o 


.s 


'5 

3 


S' 


CI 
i- 
1- 

1 

Is 

I-- 

IS 

"T 

S 

£3 

;as 


su    s 


•  to 

|S  : 

o  a  -w 

;5P  (i^ 


•aSn.CoA  JO 
8.Vin>  .|o  -on 


s 


Mjfimiiox 


B 

i«5 


?- 


^       -* 


a 
o 

a 


I      I 


s 


o 
it 

3 

c 


s 


')U9IU  I 

■a}»j»)j098it,i) 


BRITISH    TABLES. 


EXPLANATION  OF  THE  TABLii. 


019 


I.  Ah  regards  the  fourteen  whalers  the  table  shows  that  the  sum  of  !»ir>(i4,>'70  in  paper 
is  claiiiietl  for  the  vessels  and  ontlits ;  Imt  .fiir)5,4()7  must  be  deducted  from  this  sum,  a.> 
constituting  double  claims,  which  leaves  a  balance  of  ;f40y,2:U  in  paper. 

Moreover,  the  sum  of  .*il,0l{l,*2r)7  in  paper  is  claimed  for  expected  gross  profits,  from 
which  lS>ll,44'i  ujust  be  deducted  as  constituting  double  claims,  which  leaves  a  balance 
of  |l,0iy,815  in  paper. 

For  gross  earned  profits  the  sum  of  .'5<'J.')3,OOr)  in  pai)er  is  claimed,  from  which  must  be 
deducted  .iiii:{,14'2,  as  constituting  double  claims,  which  leaves  a  balance  of  §'^40,703  in 
paper. 

The  claims  for  the  vessels,  outfits,  and  probable  and  earned  gross  profits,  therefore, 
amount,  after  deducting  the  double  claims,  to.'jil,(iGU,81l  in  paper. 

We  estimate  the  losses  for  which  this  claim  is  made  at  !!<4.">8,ij;?8  in  gohl,  of  which 
ftSCijOOU  represent  the  value  of  the  vessels  and  outfits  at  the  begininng  of  their  voyages, 
and  $93,538  represent  a  profit  at  the  rate  of  !i.'}  per  cent,  per  annum,  together  with  th(i 
wages  from  the  beginning  of  the  voyage  up  to  the  time  of  the  capture. 

The  table  also  shows  that  there  is  a  claim  for  the  personal  eftects  of  captains,  (and  in 
one  or  two  cases  for  those  of  the  mates  of  vessels,)  whichamonnts,  after  deducting  the 
double  claims,  to  .'?13,49(!,  and  for  the  damages  to  .$152,300  in  paper. 

As  to  the  claims  for  personal  eftects,  wo  have  allowed  them  in  full. 

As  regards  the  claim  for  damages,  it  is  composed  almost  entirely  of  the  following 
items:  §1',000,  claimed  for  the  first  time  in  the  month  of  April  last,  by  the  mate  of  the 
Levi  Starbnck,  for  loss  of  time;  $7,000,  claimed  by  a  harpooner,  for  personal  injuries; 
this  claim,  however,  which  is  only  based  upon  a  letter  addressed  to  the  Secretary  of  the 
Navy,  is  supported  by  no  afiidavit,  and  is  ad\anced  without  any  explanation.  The 
other  item  is  a  claim  for  .*<135,000,  in  the  case  of  the  Ocraulgee,  which,  it  is  asserted,  is  for 
losses  of  merchandise  on  board  and  profits.  Wo  can  demonstrate  that  these  claims 
should  be  rejected. 

II.  As  regards  the  forty-four  merchant- vessels  the  table  sliows  the  following  facts : 
The  sum  of  $1,015,290  in  paper  is  claimed  for  the  vessels,  outfits,  aud  provisions,  after 

de«luction  of  the  double  claims 

The  sum  of  $782,617  in  paper  is  claimed  for  gross  freights,  after  deduction  of  the 
double  claims ;  which  makes  a  total  of  .§2,397,907  in  paper  for  the  vessels  and  freights. 

Wo  estimate  the  losses  for  which  this  claim  is  presented  at  $1,171,469  in  gold,  of 
which  §1,130,400  represent  the  value  of  the  vessels  and  outfits  at  the  begimiing  of  the 
voyage,  and  $41,IK)9  the  interest  on  this  value  and  the  wages  from  the  beginning  of  the 
voyage  up  to  the  day  of  the  capture. 

The  sum  of  $1,831,070  in  paper  is  claimed  for  cargoes  and  profits,  insurance  and 
commission  on  these  same  cargoes,  as  well  as  for  danmges  arising  from  the  non-arrival 
at  the  poVt  of  destination,  after  deduction  of  the  double  claims,  which  can  be  easily 
shown  for  the  moment.  We  have  reduced  this  claim  to  $1,620,043  in  paper,  and  we  are 
able  to  show  that  this  reduction  is,  in  all  probability,  far  from  sufficient. 

The  table  shows,  moreover,  that  the  sum  of  $90,233  in  paper  is  claimed  for  pei-sonal 
effects  of  cai>tains,  (and,  in  one  or  two  cases,  for  those  of  mates  likewise,)  and  $GC,.'i7I 
in  paper  for  damages  and  sundry  losses. 

As  to  the  personal  eftects  of  the  captain  or  of  the  crew,  we  have  allowed  them  to  pass 
in  all  cases  save  five.  We  can  show  that,  in  these  five  cases,  the  claims  are  evidently 
exaggerated,  aud  wo  liave,  therefore,  reduced  them. 

As  regards  the  claii  is  for  damages,  &c.,  most  of  them  are  composed  of  extravagant 
demands  advanced  bj  the  captains  of  the  vessels  for  wages  or  for  the  loss  of  about 
twelve  months  of  their  time ;  of  a  claim  of  $10,000,  presented  by  a  traveler  on  account  of 
«lclay  ;  aud  of  Jinother  claim  of  $10,000,  also  preferred  l)y  a  traveler  for  the  loss  of  his 
position  as  consul,  together  with  other  claims  evidently  inadmissible. 

The  estimated  allowance  for  loss  of  personal  eftects,  damages,  &c.,  is  $77,803  in 
paper. 

So  that  the  total  allowance,  provisionally  estimated,  for  vessels  captured  by  the  Ala- 
bama is  $1,630,007  in  gold  for  the  vessels,  outfits,  freights,  and  profits,  aud  $1,717,842 
in  paper  for  other  claims. 


620 


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Sl'PPLK.MENTAUy    ARliUMENT.S    AND    STATKMKNTS. 


KXI'LANATIO^,   OF  'niK    TVIMJ; 


1.  As   i-C|^iii'<is   tlu'  t  ut'iity-t'ijflit    iiH'i'chiiiU-vi'sscls   tlic   falilt^    sliov 


III. 


■.>K'Mvm;j; 


'J'lin  Slim  of  •'Si)'.t;>.U4li  ill  |tfii>t'r  is  tlaiiiioil  for  the  vcnscIs.  outlit.s.  anil  iirovisioii-.  after 
(Iciliictioii  (if  the  (loiili'if  rlaiiiM. 

Till-  siiiii  rf  !5'i"i4.rili(J  ill  iiajtcr  is  claimed  for  tfinss  fn'i;;lits,  iiftff  (Itilncrion  of  the 
''loulile  ciiiinis,  wliicli  inakfs  a  total  of  sl,>J'>:{,r>7r)  in  )iai>ei'  fi>r  tlio  vt'sscls  iiii<!  fii-i;'hts. 

Wt' cHliv.af  •  the  losses  for  wliicli  this  claim  is  advaiiccil  at  Jr7:!4,IH(!  in  ;;(il(l  :  »i(' 
wiiich  !*T(>lt,4tM)  rci»ri'srnt  iho  saliio  of  tli<'  scsscls  and  oiitlits  at  the  hi'^finiiiii;^  of  the 
voyanf,  and  ¥--J,'.Wi  H"'  inrcicst  on  this  sum.  to;;i'tlnM'  with  the  waj^iis  from  tin-  \>v'^\ii- 
viiuj;  of  the  vovant'  n|i  to  tiic  time  r>f  the  caittnre. 

Tiie  Slim  of  S~.-511.r>n  ill  |ta|iei' is  ciaimed  lor  the  car^.-oes  and  iirohts,  the  in>i;rami- 
aixl  I'omniission  on  the  same  (■ai;;oes.  as  well  as  I'm''  the  ''.amajj;es,  result inj^  from  the 
noii-arrivai  at  the  |io't  of  destination,  after  dednetioii  of  thedoiihle  ehiims  \\hieh  lan 
lie  ('l<'arl\  demonstrated  /«/•  (in  iDoini'iil  We  have  reduced  this  claim  to  !S\>,i(:;4.i:,(;  in 
liaper,  nuil  ve  can  show  r.iat  this  reduction  is,  in  all  jMohahility,  t'nv  from  bein-  siitH- 
'ieut. 

As  to  the  perisonal  effects  III  the  ca(tlaiii  or  crew  we  ha\e  allowed  them  to  pas^  in 
all  I'ftNes,  save  foil!'.  \V(>  are  ahie  to  show  that  in  tliese  four  eases  the  claims  iii<-  evi- 
dently exa^jfjerated,  and  svi;  ha»<'  therefore  i\  diieed  them. 

As  rc^inrds  the  claims  for  daiiiai;e.>,.  tliev  are  mainly  com|>i)scd  ot'  tln^  followiii;;  items : 
There  are  two  le-w  claims  Inmiiiht  tor  the  lirst  time  in  (he  month  of  March  last  liy  (he 
tirst  aiid  m cond  ma«es  ni  the  Ciowd  I'oint.for  wajj^es  and  damai;<'s;  they  amount   to 


rhe 


e\t!avay;ant   s-.-.m  ol   ><-.'n.(i(Ml. 


Th 


a  claim  iiroui'ht   liv  Man  ha  William-,  a 


imf!Ken;;er  on  lio.ird   of  the  .lacoli  |5ell,  fiir  |.ersonal  eUcct^  amonntiny  to  J^'ifl.'i^" ; 


an  sh 


tii'it    tliero  are   siithriciit   I'casons  for  reieeiinij' this  claim.     There  is  also  a 


claim  .or.'*lH,.''>nO,  hronj{ht  hy  the  owners  ol' the  T.icony  for  lo.-ses  in  couHei|uence  of  tin- 
intcrrnittieii  ol'  their  Imsiness:   we  ai'c  of  the  o|iiniou  that  it  should  lie  striudc  out. 

II.  As  n'^iiids  the  live  other  uierchant-\  essels  we  I'un  show  that    there  arc  special 
rca.soii.s  re(|iiirin;{  the  rednetion  ol  tiie  claims  to  the  kiiiiis  inserted  in  the  tahle. 

III.  As  K  ;iarils  the  seven  li.shin!;-\  essels  and  the  Hien/i  we  huve  allowiMl  the  claim.s 
to  ]ia8s  ill  full. 


IV.  As  rcfj;ards  the  (iolcimda 


we   iia\( 


di 


d   tl 


III  of  ¥I<>-.""<1    in   l>a;>cr  to 


■frTl.CO.'i  ill  Mdid,  in  thi*  manner  and  for  liie   reasons  staled   on    pa^'e ','7  of  the  sociith 
volum<^  «'f  llu!  Hritish  Aiipendi\. 

So  tliat  llie  total  allow  aiiee.  |ii"\isioiially  est imaled,  for  vessels  captured  '<y  the 
i'lorida,  is  sip<(i."i,;i;*l  in  jjold  ioi  the  m-sscIs,  ontlits,  I'leiirhts,  and  prolils,  and  ■fr.'.l74,rKS."» 
in  paper  foi'  other  claims. 


lUxMTISlI     JAIJLKS. 


(125 


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i 

^ 

ii 

1 

I 

1 

0 

1 

« 

':*: 

« 

K 

1/. 
a. 

X 

1 

■t 

< 

X 

B 

o 

.7 

1 

y^ 

V 

>*■ 

c 

r. 

,71 

u. 

b 
?, 

p 

5 

"M 

% 

1 

c 

% 


628 


sri'PLr.MKMAKY    AU(i!'MKNT.S    AM>    slATHMKN'TS. 


I'  f5 


i'H 


Mi.    i 

T  S         •• 


•f      !  s 


-7 
-i 

••fits 
_  i, 


!-   '   "^  S  ?T  " 


I''i 


IS 


3 


.i  V 


'if    . 


^ 


Vi 


ye. 


4 

1 

1 

2 

• 

;.< 

i: 

i 

1  ;'" 

•  '.i.'. 

I" 

aA«| 

t" 

">; 

11 

s 
s 

1$; 

("5 

P 

|3 

•3l> 

S 

— 

-    I 

•?l 


M'llllllli'.f. 


I 


%       i; 


?il 


■iii-Hii        I 
>|i':n.l<)  •I'liM 


I 


:   2- 

I1 1!  7t  tl 


I'.KITISII    TAl-.I.KS. 


(121) 


Cliiimi'  for  upfcUtl }>niril»  hi  •dv  .>/"  Ili<    iiixils  raiiliind  hi/  IIk    Sin  Ktndoith  iiJ'Ui   lln  mcrlh 

of  •/uiiiiiiri/,  i''t)."i. 


-  *  i 

*-,  f  ,     N.iiiif  iif  vr-rt-t ! 


-■J.'i  I  AMyiiiJ 

■JJ7  '  r.niii<\\ii'U 

■-'•.'!•  '  I'.ltli.lili.- 


I 


I.i)-«  of  I  \]irrti  il  iiiiplllx. 


r.osN  l>\  iiili-ri'iiplioii  (if  voyiiKts 

I.iiHJ  111    [ilnliiililr  I'.lli  11 


'j:w  I  rmijin— •< <li> 

:V.\  '  (  'l)vill;;|iil| t)<l 

'.if  '  JMw.ilil  Cilli.. ilo 

.'It  '   I!ii|i|ii-ali  t I   i.<»»  l<v  iiiliT!ii|iti<ili  111'  viivnyiv 

.: Ill     l\i V..1  itr do ■ 


I.(  -.  I   t     lil'llllilllll!  ftltcll. 


•J'll  til  111   Willi.lllio  . 

i 

•Jill    I  (JipsV 

'.'iri  I  iiiiiiii.iiiii ' t 

■iVi    '  l^a.U'  lin\«  IjiIkI. <|l) 


do 
ltd 


'.'•IK   !    '.sjiliillil    ' <|.. 

•JMI  I  .1.  Swilt <lit    

•Jkl  i  Mi'i'tliu I  I.im»  liy  iiiti  nilJitiiMi  III' vny.ijii- 

JVi  I   N'llHHIIII I llll 

•-'.>  '  \i/iiriiil llll 

vVl  \  I'l  all I.iiiis  III'  iniiliiilili-  (Ml I'll 

'.'tld  .  SiH»llilt  'I'lliillllnli..' llll 

Ili'J      Sii«ali  .\lil;i.iil llll 


•Jli,t    !    WilVillv. 


•,'M  I  Will.  'I'liompNim. 
«ti.'i     W.<".  Ny« 


Total 


llll. 
ito 


Ii'i  Ili.irr.H. 


t\c<x  »w  ' 

1''.  Ii',','l 
I'.lli. , -117     .Sir  till'  i.ii:;ii'iil  !  .|,  p.  i:ir,  ami 
i       till'  lii'^ililiili):  III   tl:r  x'riiliil  :i 
'       port  :  it  i-<  .1  III  'A  (.liilMi. 
Xt.  07.'. 
r.l..'itl7 
lil'i.  lilHI 
loll.  -7.-. 

''.,«.'>0     Si  !■  llll'  iirj;:iii:il  i'.t.  ji.    i:tr.  aijil 
till' 111  j;iliiiii:^  I'f  till- •ii'coili'.  rr- 
'       pill  t  ;   Il  is  ,1  iii'V.'  cliiiiii. 
l;ili. '•07      Sri'  till'  iiii;:iiial  Mxl.  p.   tTT   .inil 
till'  lii-uiliiiiii;.' lit   till' Ni'ciMii!  It' 
pint  .   It  i>  .1  III  »  rliiiiii. 
4".  Ii7"i 
!i|l,  7.'iil 

.VI,  li;.-. 
liHi.  I.'i"     Si«'  till'  iirl'^iii..!  I'>t.  JI.  i-,n;,  .ir;il 

till'  lil-;:illlli'l;:  ut  tlH'  hi-iiiIiiI  ri'- 
piil't  :  It  \*  A  rliiiiii  iiirrt'aM  <l  by 
t-i^  tlOII. 

171,  i;oii 

l.t-,  0" 

ln-,',  itti'j     Si  I'  till'  iii'iuitii.I  lii-:,  p. '»'»'. 

'^,  7."i0      Si'i    III.'  iil'I^IIKil  li*I.  p.  i<if. 
1,'iH,  .-itH) 
IMI,  W«(l 
.M.  lOII 
(i.'i.  !i7.i 

iii>.>7r.    Si  I- ili"iiij|.'iiiul'l-t.  |i.  Kii  .  it  :'<.i 

111  w  rliiiiii, 

1  ill,  •,.■.<» 

•Jl",  l-JTi 


8, 7til,  -JtW 


I)unh\  i/n(i/i>  III   llll  IK*!  <ij'  till    cimmIh  iiiiifiiriil  hij  llf    sin  ii)iif<lfnli  iij'iti  till   mouth  of  Jail' 

iiiiii),  |."'(i.''i. 


fjC         N.iiiii-  111  \i'-«i  I. 


I.iis-i  III  I'Spi'i'ti'il  pliil;l«. 


a 


'■i•i^      l'.l'llll«uirk 

v;  !■-'     Ciitijii  1  "••! . . 

■  lit'     K'ljilii'iiti'i 

■J'tll       I'llMllitl- 


■H\     Cm  I  Willianii 


•.'•«:i  tlljwy 

•M  lli'i-tor 

i 

'Hr.  l|illni.ti>ii 

V!'i7  loiiac  Hiiulund... 

■.•'!!•  N.|l«'llil 


*'<>tiiinli!iiii  liisiiiiiiHi'  <  'iiiiipaiiy 

('mil  nil  I.  i.il  I  '11111 1  111  11  \ 

Atl.iiilir  Miiliial  I'liiiipiiiiy 

.Ml  tn-piilltaii  )'iiiii|.aiiy 

< 'iiiiiiiK'ii  "III  Nliiliial  ('iiiiipiiiiy  .  . 

.Ml  tiii|iiilital>  t 'iiiii|iaiiy 

.Mlaiilir  M'ltiiiil  I'liiiipiiiiy , 

•  'iiliiiiiliiali  t'liiMpaliy '. 

Sim  Mull  "I  I  t'lioip.iny 

.Ml.iiilii   .Si  lit  Hill  t'liiiipiiny 

Kill  ill  ill'  I  ali'iil 

.'\tliiiiiir  Miiliiiit  ('iiiiipiiiiy 

llll 

I  'iiliiiiilii.iii  <  'iiiiipaiiy     

1  iiiiiii  Miiliial  I  iiiiipiiiiy 

I 'iiiiiiiii'irial  Mutual  Ciiiiipiiiiv 

Mutual  Mai'iiii   I  'iiiiipaii\    

Ailaiitir  Miitii.il  riiiiipuiiy  

Mi'tiiiiinlilaii  I'liiiipiiiiy 

('•iliiiiiliiaii  t  iiiiip.iiiv    ' 

I  iiiiiiiii  irial  Mutual  riMnpiiiiy   . 
Atl.iiitii    Miitiiiil  <'iiiii|iiiii\      . 
Ni'»  l''.iii!laiiiM 'iiiii|iiiiiy 
I ''iiiiiiii'iriiil  Mutual  i 'iiinpaiiy 

<  'iihiiuliiaii  <  'mil puny 

Mrliiipiilitiiii  t'liiiipaiiy     

Atlaiitii    Mutual  I 'ninpiiny 


:c.. 


III. 
-11). 


't'l 

il. 
II). 
t'l. 

1".. 

111 
•-'li. 

ii>! 
i.v 

;«8, 

I, 


000 
\ii»ll 
7iit( 
:iiNi 

7  "Ml 

IHMl 
OOll 
.■iOO 
.VN) 

VN) 
i>7:> 

''» I 

1,1 

I  iH) 
■Itii 

,'ilVl 
17. -. 
•J  "-I 

IHHI 

.'410 
WH) 

niHi 

IKI.I 


I.IHlll 

:i.  ii.'iii 

rtilt 

U'l.  iHlit 


G30 


SUPPLEMENTARY    ARGUMENTS    AND    STATEMENTS. 


Ihmhlc  rlaim>i  in  the  cane  ofri'Huds  captured  hy  the  Shenandoah — Contitmcil. 


'1    ,i 

l!lr:l 


:  1 
i 

i: 

1 

1 

r, 
r 

" 

1    I 


'1i 


•■..  a 
Ph2 


n5:« 


N.init"  (if  \  ;-.HH('l. 

M.rtlia 

Na.t^jiu 


Sr.S  '  \i;.,:-..il 

'J>1)  ,  Si'pliia  Thointoii . 


2i;:»  .  W.iv.  rlv 

-til  '  Wii,    rimiiiii-.iiu 

I 

Cli.'i      W.  Xyc 

T.iiul 


Morcaiitili'  Mutual  Company 

Atlantic.  Mutual  (^oiniiauy  .. 

Sun  Mutual  l,'ipniiiany 

Mctropiilitari  ( 'iHH|)any 

Atlantic  Mutual  Ci)iii|iany  .. 

I'liion  Mutual 

Atliinlic  Mutiuii  diMipany  .. 

Ocean  Mutual  (.'lunpaiiy 

CoiMiiici'cial   Mutual  Cut 

Union  Mutual. . . 

do    

.  ('(iiuiiii'i'cial  Mutual  Couipany 
I  OciMU  Mutual  CiiMipau.i 

I'uiou  Mutu.il  Ciiuipiiiiy 

'  Atlantic  Mutual  t '(.nip, lay. . . 


Juin|)aiiy. 


i\.  onn 

1(1,  000 
!>,  000 

47,  rioo 

6,  OIK) 
■is,  tHM) 

3,  or)i) 

1")  tMM» 
'},  000 

:ii,i>r.o 

15,  500 
It),  500 
■i-i.  500 
•■M,  000 


(JO-3,  «!I0 


EXPIANATION  OF  TIIK  TAI'.I.i:. 

I.  A-  ii'Lcaid.-  till'  claiiii  of  the  first  Ajiir  ^vlialffs.  wliit  li  wiTc  .-iiiiji'y  dctaiiiod,  wo 
li;iv(>  rcdiKfd  (lie  claiiii  of  •*:?■!( J,'.!.") I  iti  jtaiicr  to  si'(T,4lo  in  jvolil. 

ir.  As  icy;ir(ls  tii(>  twcKly-fonr  wlitilcrs  dcstroyctl,  tlic  tiihlc  sliows  Unit  tlit^  siitii 
(f  .51,'.*'>1,7titi  ill  ]>i5i)('r  is  claiiiHHl  for  the  aosscIs  iiiid  oiitlits;  Imt  sii-'f^.'^iH  must  ))h 
df(1ii(.'li-d  from  (liis  sum  as  foiistitiitiiio;  double  claims,  wliii.li  k-avcs  a  l>:ilauce  of 
flJVi.^jTti-'  in  i»i(ji('r. 

Jicsidcs  the  al>ovt>,  tlio  sum  of  .$'2,*"<1,Ur)r)  in  jiiqicr  is  chiimi'd  for  prolijihlo  f/rosn  profits. 

For  {jyt'xx  eiinicd  profits  iiii4r)ii,5r>(»  in  it;i|ier  is  cliiiiiKMl ;  from  wliitli  mtist  l»o  <kMliicted 
:i|i:!'),'J'.hi  as  const  it  tit  in;!;  doiihlc  cliiiins,  wliicli  loaves  ti  Italancc  of  iJ4l"','i.>'  in  paper. 

The  claims  for  tlic  vessels,  ontlits,  tind  ;;ross  profits,  liotli  exiiccted  iiml  earned,  tliero- 
fore  aiiKiimt,  after  the  doiihle  claims  hiive  heeti  dtjdtietc'l,  to  .'i!4,.V<jr>,'.il).')  in  paper. 

We  estimatt!  the  losses  tor  whi'h  this  cliiiiii  is  itresentcd  at  >il,(i2;!,:U8  in  jjold,  o'" 
which  s^.")ti,0()()  r(4)reseiit  the  viiliic  ef  the  vtsssels  and  ontlits  at  the  lie;;itiniii;j;  of  their 
\oyay;es.  tiiid  9«ll>7,:U)8  protit  tit  the  rati*  of  2.")  per  cent,  per  aniitim,  and  the  wajje.s  from 
the  hr-iM;ttiij;;  of  the  vo.va^je  up  to  tht'  dtiy  of  the  ciiptnre. 

The  tahli' also  shows  that  there  i  -  a  claim  for  persontil  etVects  of  cajitains  (and,  in 
OIK!  or  two  instances,  for  tliost^  of  mates  of  vessels)  which  amounts,  after  the  double 
cliiims  hiive,  been  deducted,  to  $ll)li,ir>li,  atid  for  d;ima};»'Si  6l'>"'."~'i  in  papiT. 

As  to  the  claims  for  persontil  (dfects  of  the  ctipttiin  or  crew,  they  have  heen  allowed 
to  pass  iti  till  cases,  save  six.  We  c;in  show  thtit  in  these  cases  the  claims  ;ue.  evidently 
(  \a;;;;eii\icil,  and  we  have  therefore  reduced  them. 

As  rezai'ds  the  cliiim  for  diiuuiges,  it  is  composed  almost  entirely  of  the  lollowiu<i( 
itcius  : 

In  the  ctise  of  (ho  K<hvard  Carey  the  cai>taitrs  <laitit,  first  pres<'ntc(l  in  the  month 
of  Mtiteji  liist,  aiiiotints  to  .'iiiU),000  for  dama^jes,  ill  addition  to  his  claim  for  personal 
clVicts. 

Ill  the  case  of  the  Oeuertil  Williams  the  captain  :ind  mate  ( laimed  for  tlie  first  time 
in  the  ttiuiith  ef  M,ii(  h  Itist  the  >iitiis  of  §"iU,(i(l()  ;iud  sli),(Mlt),  respectively,  for  the  h)s.s 
of  their  ]ii()l)al>le  catch,  in  a<hlitit>n  to  their  cl.iiins  for  personal  ellects. 

Ill  tie  I  iise  of  the  Petirl  tin;  imite  :ind  one  (iiirdeniir,  ti  cooper,  ci.iimed,  for  the  firsti 
time,  ill  the  month  of  Mtirch  hist,  tin-  sllm•^  i.f  .s.'>,tlOO  jind  sl,'iOO,  res])ectively,  for  the 
loss  of  twelve  months'  time,  in  :id<lit;ton  to  their  claim  for  persontil  etl'ects. 

In  the  ciisi  ot  the  V\  .  ( '.  Nye  the  lapttiin  (  hiims  if;;"), HOD  for  lo.sses  in  coiiaequpiice  of 
the  aliiindoniiient  of  his  voya<i;e,  in  addition  to  his  claim  for  i>eisoiiii!  etfects. 

In  the  case  of  the  .Susan  Ahijiail  there  is  ti  claim  for  *1H,71(»  for  nierehandise  jilaced 
ell  hoard  lor  commercial  purposes,  tind  ti  claim  of  ^■'-',7ri(»  for  the  profits  which  it  wm 
expected  to  re.ili/.e  in  such  eoiiit(H>rce. 

W.'  think  ourselves  aide  to  show  to  the  Tribunal  rhtit  there  is  ground  for  the  rejec- 
tion of  all  these  claims  for  diiiiia.  s. 


rs. 

itinucd. 


!     I 


$1,000 

xi,  ax) 

10,  000 
!>,  000 

•n,  W)!) 

6,  Oil) 
2i!l,  (MM) 

3,  ono 

1.>(MMI 

':>,  0(Mi 

IM.i.lO 
l,'i,  soil 
10,500 

■i'-i,  r>m 

■M,  (M)() 


m%  mo 


y  dctaiiiod,  wo 

Unit  tho  sum 

'>i,'^'M  niu.st  1>H 

u   l>alauce  «>t" 

\o  f/rosa  prolit.s. 
st  hi)  dcdiictod 
'.  in  pa|)t>r. 
eariieil,  tlioro- 

I  papor. 

U8  in  f;;i)l(l,  o" 
iiiiu^if  (»f  tlicii 
lie  wages  iVoiii 

)tains  (and,  in 
cr  the  doulde 
nr. 

bt'en  allowed 
salt",  ovidently 

the  iullowinjr 

in  the  month 

II  lor  i)er.sonal 

•  tho  lirat  tinio 
y,  for  the  lo»s 

1,  for  the  first 
tively,  for  tho 
,s. 
onseqiieiioe  of 

iCtS. 

landise  jdaced 
which  it  wa.'i 

for  tiie  rejec- 


BUITISH    TABLES. 


oTg. 


id 


i 

c 


4 


o 


^ 


?      ! 


^3 


V 


-t*  7.'         — 

rr        '' 


^ 
P 


8 

2 

"3 


be 
eg 

c 
o 


A  Q 


c  a 


.55 

ce6 


T.    ♦- 


u 


I  " 


-.s 


5  4-*.= 

o  5i  ^ 


V  <s,c 


E-Hs 


631 


032  SI'IM'LKMKNTAK'V    AUCMMKNTS    A\l»    STATKMKNTS. 

Tut((l  of  the  ciniins  vomimrrd. 


MM!  VMA. 


Class  A 

Class  IS 

ClasnC 

Class  I) 

Clas^  i:  anil   V 


I'l  i)i:ii)A,  ( (iMi'i;:>iNii  i  i.mjk.nck.  iai  unv. 


CinvsA 

Class  r, 

Class  C 

Class  1» 

Class  !•;  ami   1'. 
Class  (i 


SlII.N  \M),)\II. 


Class  A.  aiiil  sii|ii)|i'!iii'iit , 

Class  1! 

Class  C 

Clas-i  1> 


i;i;i  \v\  1 1  i.u  ii'N. 


Alaltaiiia 

I'loriila 

SluMiaii(lii,ili . 


A.....nn«s.-lai.,M.,l  !  A.n<.unts   .rant...l 

tal.l.-s.  "         'l«''lt.<.  tl...  Ki.K- 

lisli  ai'iTMmt'iit. 


■<\..'.\  l.-J-ii  it'.i 

I, ;!;•(;.  i::(i  n:\ 

?,  :i(i'.i,  ^Tf'i  1(1 

ii:{,'J-<  :i:! 

l-j:!.  HIT  7- 


W'c  'u>i<'  add  ail  llu'  claiins  aiMii;;-  (Vdmi  tin-  iu- 
tfriiiptinn  1)1'  V(»yaj;i's  ami  Iksscs  of  exiirctrd 
prolit  s 


I'iCMOiit  ilaiiiis  (il'tlii*  I'niti'd  Stati'-<  lor  cviiciisfs 
caused  to   tlirir  Na\  v  liy  aits  ol' llir  I'lni  i.la,  i 
Alabama,  and  Slifuandn.ili , 


i)(i(i,  ~!»:i  (I'l 

til-,."!:!,"  (M 

'.',  <iiM.:!7(;  (M 

i:'.ts(i-Jl  (III 

•17,  "T.n  (III 


I        tJ.  r»:»7,  tisKi  (•:<  j         :i.-jii7.t)7H  iii» 


•J','*.  I'll  '.I'.' 
.".:ill.  1711  HI 
:!.:•.:!'.».  no  n-J 
i:i-.li-J'.i  17 
.'7'-,r.i<  c-i 
:'l. ',••,'.'.  1(1 

iii<.:.t;4  (!  1 

•  ■.li,T(i;i  (HI 

i.T7(;,;!.".7  (Ml 

I4,:.7ii  (Id 

1.1,  iir.d  (1(1 

l.tli;.;!(i:!  ;•;•, 

•  > 

('i:'i.'i,  ."it is  (Id 

;i,'.i-i,  17'.  .V. 
ll-,.M«  i;i 
1  I'.l.  d.T.  tui 
1(17,(17:.  (II 

1,  171,  Itil  (III 
•,",i.  tllld  (Id 

',•;•,  ."if^'i  (Id 
:;7..'iti(i  (III 

4.  XjC.  1  Id  (M 

1. 

;!:'..'^,t»:!t.;  (lo 

i;.."..'.7,»i'.iii  (•:'. 
•I.t'dd,  :'.(•:'.  ii.! 
•»,:;.".i;, -11(1  <i» 

■ » 

•Jii7,('>T.'s  (Id 
(i:M,  ."»('(."<  (Id 
:!:!;-, -Jiu;  Od 

i.'.,:.,!*!.  i;u  (Id 
i.dd'.i.'.d-,'  .".d 

t  . 

•JII,4H-J  Od 

1 

111, .">:;;•, 7:'«("i  Od 

(;,7:'..".,  doo  -J'.i 

4  , 

•ill,  4.- J  Ud 
<'4d,  4(;0  24 

•^ti,a74.7l»8  ill* 

e-, 

Wl,iH'>  U 

Tlio  United  Stattvs  cliiiiii  iiit«'rost  on  tlio  wholo  iiinount  at  7  per  cent. 
])vr  aniiuiu  up  to  tlio  <la\  of  [>ayiiK'iit,  according'  to  the  terms  of  the 
Treaty. 


'S. 


omits  ;j;ri(iit<'il 
I  tin-  rciHirt lul- 
cd  to  till'  I'lij;- 

sli  ;Ufj;illIlt'llt. 


t;H,.V(H  ct 

•.', <Mi.i.:!7(;  (111 

i:;r.,  (i-ji  dn 

•17,  ^r>o  (111 

:!.'J('.T.ri7-<  (M 


iii-;,.">n4  (II 

•  ;u.7(ii»  (Ml 

. 77t'.,;t:i7  (111 

N,:.7(t  (Ml 

iil.:!r.(i  (III 


•J.  »;;'..'>,  .')(■>,•<  (HI 


•1,  171.  \>\\  (III 

•jit.  (i:<(i  (III 

;»!•,  .'iH'i  (Ml 

;;7..'>(i(i  (III 


l,;;:>.-i:u;  fin 


;!.•.»( ".7. ('.7-'  (Ml 
•J.  (;:•.:..  ."»(i-<  (mi 

7.-.MI.  I--J  tli> 


7.  J 11,  I-' J  0(1 
'.'J<|,  tdO  2-1 


t  7  i)cr  cent, 
crins  of  the 


xv.-Rr-rLV  OF  Till':  a(;knt  of  tiii:  initki)  states  to  thk 

NKW  MATTKK  INTKODlCi:  D  HV  THE  AIJKNT  OF  HER  RIUTANNKJ 
MAJESTY  ON  Tin:  CAM.  OF  THE  TllinUNAL  FOR  ELUCIDATION 
IN  RESPECT  To  THE  TAI'.LES  PRESENTED  IIY  THETWOliOV- 
EIIN.MENTS. 


The  tiihli's  ;)i('scii;('il  to  tlic  Tiibiiiiiil  liy  the  ;i;'('iit  (it  llcr  Jiiidiimic 
j'NIiiJesty  *»n  tli*'  l'->tli  inul  LMUli  instiinr,  lUKlcr  the  I'.ill  lor  a  coiniiaiiitivc 
Htatciiu'iit  of  tlic  iWitisli  ami  Aincricaii  tabh's  tlicii  already  incscntcd, 
arc  new,  in  sidtstaiicc  as  wt'Il  as  ibrin,  and  contaiii  new  critii'isins  on  tlie 
American  taltlcs.  The  ainent  ot"  thi',  I'nitcd  States  makes  no  e.\cei)ti()n 
to  tins  liUeity  taken  by  tlic  IWitish  a.i;ent. 

Mis  (ioveriinicnt  «M)nrts  a  tree  discussion  of  all  its  claims,  and  has  no 
desire  to  slinr  out  critieisiu  ]»y  technical  olijections.  lie  elaims,  how- 
ever, his  riiiht.  under  the  Treaty,  to  reply  to  the  new  matter  introduced 
under  the  v-all  for  elucidation  made  at  the  re(iuest  oi'  the  N'iscount 
(ritajiibii. 

I. — Tni:  <.ri:sT!<iN  di''  (mi.d  or,  paim'.u. 

It  is  Several  tiiiies  staled  in  tli«' jiapcrs  j. resented  by  the  llritish  a.i;c'nt 
that  the  chiiins  of  the  L'nited  States  are  mad(!  in  paper  im>n<'y.  This  is 
ji  mistake.  They  are  made  in  ;i'old,  uidess  when  expressly  stated  te  be 
made  in  paper,     'i'hc  ]»r(iof  of  this  is  multifarious. 

((t)  The  Treaty  provides  that  the  award  is  to  be  paid  in  <i'old.  Tlu' 
claims  are  siibmitted  under  th<'  provisions  of  the  Treaty.  The  strong' 
presumption  is,  therelbre,  that  the  claimants  stated  their  claims  'n  the 
currency  in  which  the  jnd^iuent  is  to  be  nmde,  vi/.  coin. 

{h)  'i'iiis  presumption  is  stienj;thened  by  the  fact  that  dnrin>;'  the  war 
the  merchants  <m  the  Atlantic  coast  cn,^a,u('d  in  forci;;n  trade,  and  many 
or  most  of  the  lar^e  insurance  conjpanies  on  that  coast,  and  all  persons 
en^jajicd  in  business  on  the  racitic  coast,  kept  tin  ir  books  and  acccanits 
in  coin. 

{(•)  It  is  also  strengthened  by  tin-  fact  that  the  cruises  of  many  of  the 
vessels  <lestroyed  beyan  betbre  the  paper-money  ot"  the  Tnitcil  States 
had  depreciated. 

(</)  It  is  also  strenj;thcned  by  the  internal  evidence  contained  in  the 
Kevised  List  tif  Claims  tiled  April  l."i,  ISTi'. 

The  subject  is  mentioned  under  the  heads  of  the  followinj;-  vessels 
captured  by  the  Alabama  : 

1.  The  AiiKdiila,  {jxkji'  7.) — The  insurance  deducted  from  the  claim  of 
Isaiah  liarrabee,  .C171>  stciiiny-,  is  stated  to  amount  to  ■*-S0(!.;{(;.  This  is 
the  exact  sum  of  coin  which  the  sterling'  should  yield  with  exchan<'e  at 
l)ar,  viz,  $4..S4  to  the  ponml. 

li,  7'/t6' Z>V<7/m/if,  (ymr/c  L'7.)— The  claim  for  freif>ht,  £;i,tir>  J».v.  S(/.  is 
stated  to  amount  to  .Sl(»,53I.(K>.  This  also  is  the  exact  sum  in  coin  which 
the  8terlin<;'  should  yield  at  i)ar. 

.'i.  The  Chastel(titu\  {p(uje  28.) — ITei-e  ii  claim  in  jjfold  is  converted  into 
currenc}',  showing  expressly  that  the  whole  claim  is  in  currency. 

4.  The  Mattahan,  {papc  04.)— The  loss  (80,000  rupees)  is  stated  to 
amount  to  $3."), 000.    This  is  undoubtedly  stated  in  gold. 


(;34 


.sriMM-KMKXTARY    ARnTMEXTS    AND    sTATKMKNTS. 


'ini 


The  iillojjiitioii  tliiit  lU'W  claims  lia\»'  Ikm-m  iiitiodiicctl  into  tlu'  riiitcd 
States  tabit's  is  not  true  in  the  sense  in  wiii<'li  fin*  A<;ent  ol"  tlu^  United 
States  nnderstands  the  ri}>:iits  of  his  (loveiinnent  under  th(»  Tr«'aty. 

[(I)  It  lias  already  been  shown  to  the  Tribnnal  that  the  United  States 
ill  their  ease  niatU'  elaiin  (or  all  ''their  »lireet  losses  j,Mo\vin};  out  of 
(lestrnction  of  vessels  and  tlu'ir  eai'px's  by  insnrji'ent  <'rnisers,"  (Ant. 
Case,  pafje  4()1>,)  under  which  they  classilied  "claims  for  damajfes  or 
injuries  to  i»ersons  yrowinjj:  out  of  the  destruction  of  each  class  of  ves- 
sels/'(////(/.,)  and  that  they  asked  the  Tiibunal,  '*  froui  the  data  whi«;h 
were  furnishe«l  to  ascertain  the  names  and  the  tonna;;e  of  the  dilVerent 
vessels  destroyed,  ami  to  form  an  estimate  of  the  number  of  hardy  but 
helpless  seamen  who  were  thus  deprived  of  their  means  of  subsistence, 
ami  to  determine  what  a}j:<>rej;att'  sum  it  wiudd  be  Just  to  i)la<'e  in  the 
hands  of  the  United  States  on  that  a<*eount,''  {ihi<!.,  ]r>iiH'.  471.) 

(/>)  The  real  (puistion  raisetl  by  the  a<;ent  of  Jler  liritannic  Majesty  is, 
therefore,  not  Avhether  the  United  States  havt^  i)resented  new  lij^ures 
which  were  not  contained  in  their  former  statements,  (althou^^fh  advanced 
in  the  {^ross  r.  those  statements  as  forminjij  j»art  of  their  losses,)  but  it 
is  this,  viz  :  whether  the  Tribunal,  in  the  exercise  of  the  power  to  award 
a  sum  in  gross,  conferred  upon  it  by  the  seventh  article  of  the  Treaty, 
should  limit  itself  by  the  rules  and  modes  of  proceediiifrs  i>rescribed  for 
the  assessors  in  the  tenth  article. 


s. 


AM  KRICA  N    R  KPL  V TA  IlLKS. 


fi35 


wliiis  {\)HiiO 
This  shows 
raiuu's  were 
ir  oxpn'ssly 
IS  ol'  Ilorts- 
'iitly  of  tlir 
iM'st  iviison 
if  cJaitiis  in 
I'  isu. 

ralr  ol"  the 
I  the  rnit«'«l 
till'  Kioridii, 
lie,  l»»'<'iius(', 

t'tl   illlOIlt    ')(> 

(«   tilt'   siiiiir 
i»r  valiit's  ill 
1S«»;5.     And 
U  ||i<>  ivpiv- 
«'!•  than  tilt' 
'()iii))('iisat«Ml 
>  which   will 
•('  the  injury 
lln'  ailtitra 
sunu'  r\('('|>- 
si'c  that   tht' 
ICO  is  ;;rcatcr 
he  injury,  so 
mmI,  will  n()t, 
nitcd  States 
t  Ki'itain. 


»  the  I'nited 

the  United 

Treaty, 
nited  States 
winji  out  of 
isers,"  (An\. 
(lainafjes  or 
lass  of  ves- 

data  which 
the  ditVerenI 

f  hardy  but 
snhsistence, 

l)]a('e  in  the 

1.) 

<;  INIaJesty  is, 
new  hj;ines 

<>fh  advanced 

)sses,)  but  it 
»ver  to  award 
the  Treaty, 
escribed  for 


I) 


(<)  The  assessors  are  to  l>e  alh)wed  by  tlie  Treaty  two  and  tnie  lia'f 
yoars  to  eonelude  their  examinations,  and  they  are  required  to  exainiiH* 
eacli  elaiin  se|»arately  and  to  reiidei  their  lieeision  in  each  ease  on  the 
proofs  a«hhieed. 

(fl)  J>ut  tlie  Tribunal  is  to  make  its  decision  on  a  jjross  sum,  if  possible, 
in  tiiree  nM>nths  from  the  submission  of  th(;  ar;>'uiiient,  liaviii<>'  tirst  ex- 
hausted the  most  of  the  time  in  determining, s''l'i>''i»tely  as  to  «'acli  vessel, 
whether  (I reat  Ibitain  is  responsil>le  for  itsa«'ts;  and  tln'ic  is  nothiii}; 
in  the  Treaty  requiring;  them  to  make  their  «h'(;ision  on  the  examination 
of  proofs  furnished  by  tiie  parties. 

(<)  'I'lie  jfiosssum  which  the  Tribunal  may  award  is  to  Itc  accepted  by 
the  I'nited  States  as  a  satisfactiiui  of  '"•all  the  claims  n /'»■/»■'/ to  it,  (Art. 
Nil,)  not  of  all  the  claims  itnsnitnl  by  them. 

(/■)  It  is  therefore  manifest  that  the'l'rcaty  contemplated  that  the  indi 
vidiial  Arbitralovs,  in  reaching  such  a  <;rosssiim  as  they  mij;lit  see  tit  to 
award,  should  have  re;;ar<l  to  all  «'oiisideratioiis  of  dama;;e  or  injury  to 
the  Tnited  States  willijn  tin-  scope  of  the  arbitration,  wlu'lhei'  |uescnted 
in  detail  <u-  not,  and  that  they  should  be  at  lib<>rty  t«>  award  such  sum  as 
Justice  miyht  icqiiire,  without  a  minute  examination  of  detailed  proofs. 

(//)  {{'-spectiiiu  the  wa;;es  claimed  in  our  tallies,  the  Arltitratois  will 
lind  ill  the  \oliimes  of  the  American  Appendix  statements  of  the 
numbers  of  tlu'  oflicers  and  crews  of  several  of  the  vessels  destroyed 
1-y  the  insur.neiit  cruisei>i.  and  in  the  proofs  statements  of  the  waj;es  of 
>uv\\  persons,  l-'roiii  the  •  paitlcular  proofs  they  will  be  able  to  «lelei  ■ 
mine  wlu'ther  the  estimates  in  oiii  tai»!e  ol  the  amount  of  the  claims  pre- 
sented ori;;iiially  in  the  Ainericaii  (  ase  are.  or  ai<'  not,  concct.  I{es|)ect 
iiifX  the  claims  tor  elVects.  the  same  piools  show  that,  in  cases  in  which 
such  j'laims  have  been  actually  pioeiitcd  in  d«'tail.  they  eipial  or  exceed 
the  avera^^e  claims  in  oiii  tables.  The  Arbitrators  have  therefore  the 
means  of  deti'i'ininin^'.  with  the  reasonable  accuracy  contemplated  by 
the  Treaty,  the  amount  ol  the  ininiy  siilVered  by  the  I'liiteil  States  in 
each  of  these  respects. 

(//)  Th(^  a;:('nt  of  the  I'liitcd  States  assumes  that  the  Arbitrat()rs  will 
not  re^'ard  the  vessels  destioNcd  by  the  cruisers  as  phantom  ships,  with 
out  ol1i«'ers  or  crews.  On  the  contrary,  he  siippos«'s  that  they  will  assume 
that  tin'V  were  olbcercd  and  manned,  and  that  from  the  y'cneral  proofs 
in  the  <'as«',  and  Ironi  their  own  knowU'dye,  and  from  any  t)ther  sources 
of  information  within  their  reach,  they  will  deterinine  whether  the  state 
ments  in  our  tables  reyaidin,:;  these  numbers  are,  or  are  not,  probably 
correct. 

(/)  A  ^^ross  sum,  made  up  without  ic^urd  to  these  classes  of  h^s.so.s, 
would  not  be  a  due  eompeii.Nation  to  llie  I  nited  States  tor  tlie  injuries 
complained  of  belbre  this  rribiin;<I. 

III.— lM;o.si'i:(  1  iVE  cATciL. 

On  this  subject  it  is  only  necessary  to  rejieat  what  has  already  been 
said  on  the  part  of  the  I'nited  States. 

In  the  iiM'ia  irandum  accompanyinfi'  the  tables  presented  by  the  a<;ent 
of  the  irnited  .-i  i^es  on  the  lOtli  instant,  it  was  said,  (see  i)aj;'e  1()8:) 
"  III  the  Aii.'>rica:i  statement,  particularly  in  the  claims  ^rowiny  out  of 
the  (h\stru(!ti!iM  <*i'  whalers,  ])rospi'ctive  ])rotits,  or  prospective  catch, 
enter  into  the  .  xiputation  of  tlamajjes."  (Set'  ]S'ote  I),  American  Argu- 
ment.) 

"  in  accorlanee  with  the  siiji;i<'stions  of  some  of  the  Arbitrators,  we 
liave  eliminated  fnun  thes<'  tables   the   claims  for  juospective  catch. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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(136 


SUPPLEMENTAUY    ARGl'MENT.S    AND    STATEMENT.^. 


:!(  :L 


m 


'I 

;i 

•    ^''             j| 

if                   '■' 

1            ■ 

Jimy.^'    ■■ 

ilKii. 

amounting  to  .S4,009,302.r»0,  but  we  do  not  intend  to  retire  tliese  elaiirs 
nor  to  sujjfj'est  that  we  do  not  think  them  just.  On  this  subject  we 
refer  the  Arbitrators  to  the  note  from  tlie  American  Argument  cited 
above." 

And  in  the  note  accompanying  the  statement  made  by  the  Ami'!ica:i 
Agent  on  the  L'Utli  instant,  it  was  stated  that  ••  tiie  claims  tor  whalers 
and  fishermen's  wages,  for  vessels  destroyed  or  detained  by  the  Alabam;!, 
by  the  Florida,  or  b^^  the  SliMiandoah,  (with  the  correction  of  the  errors 
noted  in  the  niemorancbim  accompanying  our  tables,)  estimated  from  the 
]troofs  presented,  were  8'">'">S,-*47.r>();"'  and  it  was  said  that  ••  this  amoiiiit 
should  be  deducted  from  the  total  amount  in  the  annexed  summary,  if 
the  Ti'ibunal  allow  the  whalm's' claims  for  pr()si»ective  catch  or  interruj)- 
tion  of  the  voyage.''  And  it  was  further  said  in  that  nii'moramhun  that 
if  the  Tribunal  should  bc!  of  the  opinion  that  the  prospective  catch  should 
not  be  allowed,  then  '•  we  ask,  as  an  eipiivaleut,  an  allowance  of  'J't  per 
cent,  on  the  value  of  the  vessel  and  theequii>ment,*'  and  in  the  said  iu)t«' 
we  gave  th<^  amount  so  to  be  added  at  slU0,lii7.Ul.  It  cannot  therefore 
be  said  with  truth  that  the  United  States  abandon  the  claims  for 
])ros[»ective  catch  or  i)rospcctive  proiits,  or  that  they  present  them  a- 
tloiible  claims, 

IV. —  ruEKiiiTS. 

In  the  memoraiulum  above  referred  to  it  was  said  tliat,  "  according t.> 
the  arbitrary  assumption  of  the  British  statements,  the  freight  claimed  by 
the  United  States  in  the  name  of  their  mercantile  marine  is  gross  freighr, 
and  those  statements  rej'ect  all  claims  for  ireight;  while  on  our  side, 
in  the  absence  of  all  evidence  to  the  contrary,  we  assume  that  these 
reclamations  are  for  net  freight."'  And  in  the  note  above  referred  to  i': 
is  said  that  "  in  all  cases  in  which  the  Tribunal  is  satislied  that  the 
freight  claimed  is  net  J'rvUjht,  the  claim  for  wages  should  be  allow»'d,  bu" 
in  all  cases  in  which  the  Tribunal  is  satisfied  that  the  claim  for  freigii"" 
is  lor  (fross/fciijhf  the  claim  fiu'  wages  should  be  disallowed.'' 

It  canviot  be  said,  therefore,  that  we  either  make  double  claims  In 
this  respect  or  do  not  indicate  to  the  Trii)uual  the  ([uestions  for  their 
investigation. 

Y. — Dorr.LE  cLAnis. 

The  Agent  of  the  United  States  has  thought  that  it  did  not  become 
him  to  assume  the  i)rovince  of  the  Tribunal  by  deciding  in  advance  what; 
claims  for  insurance  are  and  what  are  not  ilouble  claims.  He  has,  in- 
stead of  such  a  course,  indicated  in  the  tables  presented  by  him  such 
claims  as,  in  his  opinion,  are  clear  from  doubt,  such  claims  as  nuiy  or 
nuiy  not  be  double,  and  such  claims  as  on  their  face  ap])ear  to  be  double, 
but  which  yet  deserve  the  scrutiny  of  the  Tribunal.  These  columns  are 
thus  referred  to  in  the  memorandum  accompanying  the  tables :  "Column 
three  shows  the  claims  tor  insurance,  which  are  clearly  not  double  claims. 
Column  four  shows  the  claims  for  insurance  about  \Nhich  the  evidence 
is  silent.  It  is  possible  that  some  of  these  should  be  withdrawn  from 
the  aggregate  of  column  two.  This  can  only  be  determined  by  the  ex- 
amination of  the  i>articular  facts  in  each  case.  Column  five  shows  other 
clainjs  for  insurance  in  which  the  owners  of  the  property  destroyed 
claim  at  the  same  time  full  indemnity  for  their  losses  without  regard  to 
the  insurance  embraced  in  this  column." 


'c  tlic'se  L'laiirs 
lis  subject  wo 
I'^^'uuieiit  citod 

the  Aiiie'ica.'i 
IS  for  wlialers 
the  Ahibatu:!, 
1  ot'  the  errors 
lated  Ironi  tlie 
■•  this  aiiioi'iut 
il  suiiiniary,  it 
•h  or  iiiterrup- 
loraiKliiin  that 
J  catch  shoiiUl 
nice  ot'  L'o  per 
I  the  saitl  iiot<' 
mot  tlierefore 
le  claims  for 
'Sent  them  a-^ 


AMF.RrC.W    KEl'LV— -TABLES.  (;o-^ 

VJ.-dKXHHAL   REMARKS   ON   THE    CIIAlJACTER   OF   THE    CLAIMS 


h.'l^i'-iudlh.a '"  l^li '  Yf'"^  ^^"•"  T^"''^  '^'■''  ^^'<'^'^  '-^'^""^  J'^'v*'  never 

;>;.;i^;Ps.t^^^;h;t^^ 

-*Mli„^s,  and  the.abstrnct  of  tlu'  "oof  l^l^   n' e  "^    ^T.'lreM^  S' 


In  the  Anu'rican  Case  ,,rolert  was\nade  of'the'ori^inal  proof;  shouhl 

I  iiKide  by  the  P,i 
It  is  also  jiot  admitted  that  the 


ill!!.  ±'i';^^^L^V'^','''''^  the  request  been  unide  by  the  Bl-itish  X;.;;;;; 


those  j>rools  would  have  been  here 
Geneva,  yl»//»,s/ 2S,  1872. 


'•acconlingt.) 
:ht  claimed  by 
gross  freigh:, 
0  on  our  side, 
10  that  these, 
referred  to  :" 
lied  that  the 
allowed,  bu^ 
in  for  freiiih"^ 
d." 

»le  claims  in 
ions  for  their 


il  nor  become 
idvanco  what; 
He  has,  iu- 
by  him  such 
lis  as  may  or 
to  he  double, 
columns  are 
is:  "Cohimn 
ouble  (!laims. 
the  evidence 
h drawn  from 
xl  by  the  ex- 
1  shows  other 
ty  destroyed 
)ut  regard  to 


'5      i, 


r  !  Mr 


■   i 


i'^ 


.XVI -NOTK  (IN  SOMK  OBSERVATIONS  PHESKNTKI)  BY  MR.  RAN- 
CKOFT  DAVIS  ON  THE  'illTH  ArOUST. 


The  A^oiit  ot'  the  United  States  has  ibrwarded  to  the  Ayeiit  of  Her 
Britaunie  ^rajesty,  and  lias,  it  is  supposed,  delivered  to  the  Tribunal,  a 
paper  eoiitaiuing  some  observations,  to  which  it  may  be  proper  briefly 
to  reply. 

Jt  will  be  eonviMiient  lor  the  sake  of  l>n>vity  to  refer  to  the  various 
points  to  wiiieh  these  observations  relate  in  the  order  in  wliieh  they  are 
mentioned  by  the  Ajjient  of  the  Tnited  Stat  's. 

I. — ,l.s  tit  tin:  ignited  St((trs  Tables  and  tkc  lirifisk  Tubla  and  a Uo trance:; 

l/ciwndlii. 

On  comparing''  the  Jlritish  allowances,  as  stated  in  the  Tnitcd  States 
Tables,  with  those  contained  in  the  Jlritish  'J'ables,  it  will  be  found  that 
the  total  allowances  have  been  recently  "  iacreasal.''  This  aros«^  Irom  a 
desire  to  save  thc^  time  of  the  Tribunal  an«l  to  avoid  disjuites  on  minor 
matters,  which  led  to  all  the  claims  for  ])ersonal  effects  bein<;-  allowed, 
except  a  few  which  were  manifestly  extrava^^ant.  In  tio  case  have  the 
total  allowances  in  resi)ect  of  any  one  cruiser  been  diminished.  The 
alterations,  therefore,  in  the  British  Tables  are  not  such  as  the  United 
States  have  any  reason  to  complain  of.  On  the  other  hand,  where  the 
claims  in  the  United  States  Tables  differ  from  those  in  the  Jlevised 
Statenient,  they  have  been  invariably  increased,  and  in  some  cases  to 
no  iiu-onsiderable  extent. 

11. — A.S  to  the  Ciirtenci)  question. 

It  appears  t'rom  the  i)aper  presented  by  the  United  States  Anient  be- 
in<;'  occu)>icd  by  this  more  than  by  any  other  (pu'stion,  that  it  is  felt  to 
be  a  (]uestion  of  considerable  importance,  but  it  api)ears  to  the  Aj^ent 
of  Her  Britannic  Majesty  that  the  arguments  uriicd  in  that  paper 
stron<;'ly  <*ontirm  the  view  which  has  been  submitted  on  this  matter  iii 
behalf  of  Great  Britain.  The  reasons  for  this  opinion  are  briefly  as 
follows : 

{(()  The  circumstance  of  the  Treaty  jtrovidin;:^  for  the  payment  of  the 
claims  in  i^'old  would  lU)  doubt  have  r.ilsed  a  ]U'esumi)tion  that  they  are 
made  in  that  i-urreney,  if  they  ha<l  been  originally  advanced  sidjse- 
<puMitly  to  the  Treaty.  The  fact,  however,  is  that  a  litst  of  the  claims 
was  prepared  and  was  presented  to  the  Congress  of  the  United  States 
as  early  as  the  year  1800,  and  that  the  claims  now  advanced  are  founded 
on  this  list  of  claims;  that  they  are  in  very  many  cases  identical  with, 
that  they  never  fall  short  of,  but  in  a  great  many  cases  considerably 
exceed,  the  latter  claims.  Under  these  circumstances,  as  it  is  almost 
certain  that  the  claims  advanced  in  1800  were  estimated  in  the  ordinary 
l>aper-currency,  except  in  some  few  cases  where  gold-eurrency  is  ex- 
l)ressly  referre<l  to,  it  seems  to  follow  that  the  claims  on  which  the 
Tribunal  is  called  upon  to  adjudicate  must  also  be  considered  as  esti- 
mated iu  paper-currency. 


rviR.  BAN- 


'^>:out  of  ITor 
1  Tribunal,  a 
roiMH'  briefly 

I  tlie  various 
lich  they  are 


A\\U'i\  States 
»c  foniMl  that 

arose  from  a 
tes  on  niinoi' 
'in*;'  aHowed, 
ase  have  the 
iiished.  The 
s  the  United 
d,  where  the 

tlie  Jlevised 
DUie  eases  to 


's  Aji'ent  be- 
it  is  felt  to 

o  the  Ayent 
that   paper 

lis  matter  in 

•e  brietly  as 

nient  of  the 
lat  they  are 
meed  subse- 
f  the  elainis 
nited  States 
are  foumled 
entieal  with, 
onsiderably 
it  is  almost 
;he  ordinary 
rency  is  ex- 
n  which  the 
ered  as  esti- 


BKITISH    REJOINDER — TAHLES. 


iuVJ 


(h)  This  conclusion  is  strongly  contirnied  by  the  facit  that  in  the  well- 
known  report  which  was  i)resented  to  Congress  in  the  year  1S7(),  and 
which  contains  most  valuable  tables,  showing  the  average  \alue  of 
American  ships  and  their  gross  earnings,  gold-currency  is  specially  de- 
signated as  "  specie-currency,"  to  distinguish  it  from  the  ordinary 
paper-currency. 

((')  The  same  conclusion  is  actually  proved  almost  beyond  a  doubt 
by  the  very  facts  cited  in  the  paper  now  under  consideration,  for  they 
show  that,  in  the  few  instances  in  which  the  claims  are  made  in  gohi, 
there  is  some  special  reference  to  that  ciriuimstance — a  circumstance 
which  necessarily  h^ads  to  the  inference  that  these  are  the  exce[>tional 
and  not  the  or«linary  cases. 

(d)  The  Agent  of  Her  liritannic  Majesty  entirely  denies  the  extraor- 
dinary allegation  thai  the  purchasing  power  of  gold  has,  during  the 
last  eight  y«»ars,  diminished  50  per  cent.,  and  is  also  at  a  loss  to  con- 
ceive what  bearing  the  alleged  fact,  if  true,  ought,  according  to  ai.y 
sound  principles  of  Jurisjuudence,  to  havu  on  the  decision  <>i'  the 
Tribunal. 

III. — An  to  the  icdffiN. 

The  Tribunal  has  already  decided  that  there  should  lie  an  allowance 
made  to  the  masters,  otllcers,  and  crews  of  the  whalers  of  <»iie  ,\eai's 
wages.  It  is  therefore  clear  that  the  additional  claims  for  thes(>  wages 
<!ontained  in  the  United  States  tables  must  be  struck  out.  As  regards 
the  wages  of  the  merchant-vessels,  they  will  be  referred  t(t  in  the  (•(»urse 
of  the  observation  •(  to  be  presently  nuule  in  reference  to  the  freight  of 
those  ships. 

l\. — ^4.s'  to  the  personal  etfh-tN. 

Man.\ 


anioun 


y  claims  for  ]»ersonal  effects,  some  oftliemof  an  extra\agaiit 

t,  are  comprised  in  the  Itcvised  Statement.     There  is  certainly  iu> 

reason  to  believe  that  any  were  omitted  wiiich  could  with  any  propriety 
have  been  advanced.  The  new  and  very  large  claims  for  personal  ef- 
fects, advanced  on  the  l!Hh  August  foi'  the  first  time,  are  purely  conjec- 
tural an«l  are  not  suppcuted  by  any  evidence  which  has  been  presented 
to  the  Tribunal.  Tudeed,  it  is  almost  <'ertain  that  no  such  evidenc(»  eould 
have  been  add  need, for,from  ('ai»tain  Si'mines's  .lournal  ami  other  sources 
of  inlbrnniti<ui,  it  is  well  known  that  it  was  neither  the  ])olicv  nor  the 
practice  of  th«i  captains  of  the  confederate  cruisers  to  seize  or  tlestroy 
the  ju'rsonal  effects  of  the  otticers  or  crews  of  the  caj>tured  v«'ssels. 

The  Agent  of  Jler  Jbitannic  .Majesty  also  begs  the  Tribunal  to  be;'.i- 
in  mind  that  to  advance  these  claims  Mithoul  the  slightest  evidence  in 
su]»p(Mt  of  them  is  to  act  quite  inconsistently  with  the  assertion  so  fre- 
quently made  in  behalf  of  the  United  States  that  all  the  claims  aie  sup- 
ported by  the  aflidavitsof  the  <;laimants  tiu'inselves,  ami  there  does  not 
seem  any  reason  why  the  United  States  might  not  with  t  (pial  plausibil- 
ity have  advance<l  a  series  of  mnv  hypoihetical  claims  for  the  etlects  of 
the  numerous  American  passengers  who  might  be  imagined  to  have 
been  on  boaid  the  captured  vessels. 

V. — As  to  the  prospicticc  eat.h. 

The  (piestion  relating  to  the  enormous  claim  for  prosp«'ctive  catch — 
a  claim  which  has  been  incireased  in  so  striking  and  unjustifiable  a  man- 
ner since  the  year  IcSOti — has  been  already  <h*cided  by  the  Tribumil.  The 
Agent  of  Her  Jiritannic  Majesty  therefore  thinks  it  his  duty  to  refrain. 
from  nniking  any  observations  on  this  subject. 


W 

if; 

f 

If; 

m 

i 

■       1 

()4()  .SrPi'LEMKXTAin'    AKOI'MENT.^    AM)    STATEMENTS. 

\'J. — .1.S'  /()  the  J'fcUjhts  of  tlie  morhaitt-rcsscls. 

TIio  A^i'ont  ol'  Ilt'i'  IJritiniiiic  ^Miijcsty  is  sinpiiscd  to  nn'ct  Avitli  a  ro- 
])etitioii  «»rtlio  assertion,  iiiiido  for  the  lirst  time  on  tlic  ll>tli  Au<4'iisi  last, 
that  the  claims  lor  i'n'i<;'hts  should  be  taken  as  claims  ibr  mi  and  no'  ^br 
f/rofis  frcifi'hts.  These  claims  in  the  caseol'  tiie  Alabama  amount  to  ni<  .e 
than  1.")  per  cent,  of  those  for  the  vessels  and  outtits;  but  on  looking'  at 
the  ]\e)»ort  ]>resented  to  ()on<;ress  in  the  year  ISTb,  it  will  be  tbniKl  in 
table  XXl  that  tiie  average  </ro.ss  i/nn-li/  earnin,:!is  of  American  -vessels 
enji'a^^ed  in  foreign  trade  from  the  year  iSdl  to  the  year  1>S70  amonnted 
to  .'>o.\  i»er  cent,  of  the  values  of  the  vessels.  I Tnder  these  circumstances 
the  Agent  of  Jler  IJritar  .ic  Majesty  is  at  a  loss  to  conceive  how,  in  the 
face  of  this  well-known  otticial  estinmte,  it  can  with  any  ]>lausibility  or 
])vopriety  be  contended  that  the  claims  of  4."i  per  cent,  ot  the  values  of 
the  vessels  on  voya^^es  which  would  not  avera<;e  more  than  six  months, 
that  is  to  say,  claims  equal  to  a  jiross  return  (»f  00  per  cent,  per  annum, 
are  claims  for  net  freight,  or  how  it  can  be  even  denied  that  they  are 
greatly  exaggerated,  even  when  considered  as  claims  for  f/ross  freight. 

The  Tribunal  has  decided  that  one-half  this  large  amount  should  be 
allowed,  and  it  certainly  must  be  admitted  that  this  allowance  would  be 
amply  sufiieieut  to'cover,  imt  oidy  the  net  i)rofits  expected  to  l)e  derived 
l)y  the  ship-owners  from  tLese  voyages,  but  also  any  wages  which  the 
otiicers  aiul  crews  could  be  reasonably  supposed  to  have  lost. 

A'ir. — Ai  to  the  iJonhJe  chums. 


These  are  of  two  descriptions:  those  which  are  avowedly  and  ex- 
l»ressly  made  and  which  are  admitted  in  the  United  iStates  tables,  but 
nevertheless  included  in  the  alleged  total,  and  those  which  are  tacitly 
umde,  and  which  are  not  denied  by  the  United  States  Government,  but 
are  left  by  them  for  the  determination  of  the  Tribuiuil.  As  regards  the 
former  class,  amounting  to  §809,400,  the  Agent  of  Her  Britani(;  JMajesty 
confidently  submits  that  the  suggestion  made  by  the  Tribunal  ought  to 
liave  been  at  once  adopted,  and  that  these  double  claims  should  have 
been  struck  out,  and  ought  not  to  have  been  included  in  the  total  claim 
Avhich  is  stated  in  the  United  States  tables,  ami  which  is  there  compared 
with  the  total  British  allowance  of  $7,074,710. 

As  regards  the  double  claims  tacitly  nuide,  they  were,  many  months 
ago,  specifically  jwinted  out  in  the  British  l{ei)orts,  and  there  shown  to 
be  double  claims. 

The  United  States  Government  has  had  all  the  evidentiaiy  docun»ents 
in  its  possession  for  a  long  time,  and  has,  according  to  the  statement  iu)w 
nuule  by  its  agent,  carefully  examined  them.  Such  being  the  case,  it  is 
submitted  by  the  Agent  of  Her  Britannic  IVrajesty  that,  as  the  United 
States  Government  does  not  now  deny  these  double  claims,  they  must, 
of  course,  be  deducted.  Tiie  double  claims  altogether  considerably  ex- 
<;eed  a  million  and  a  half  of  dollars. 

Finally,  it  is  now  alleged  by  the  Agent  of  the  United  States  that  his 
(rovernment  has  carefully  examined  the  docunuMits  which  are  filed  at 
AVashington. 

Tlie  assertion  that  that  Government  had  lu'ver  auditetl  the  claims  is 
to  be  found  in  the  ArgunuMit  of  the  United  States,  and  is  there  used  as 
a)!  excuse  for  the  d(nible  claims  not  having  been  excluded.  Jt  seems 
also  to  be  the  only  reason  for  the  very  inaccurate  statement  nuule  in 
that  argument  to  the  effect,  "that  very  few,  if  any,  double  claims  exist, 
excei)t  iu  the  case  of  the  whaling-vessels  destroyed  by  the  Shenandoah, 


Tfy. 


ot  with  a  ro- 
Aiift'iist  last, 

I  and  no'  f'or 
i)nnt  to  m<  .o- 

II  l()okin.£»'  at 
be  i'()nn<l  in 
iciin  >'«'sscl.s 
0  anionnted 
rcnnistancew 
?  liow,  ill  the. 
insibiiity  or 
1)0  values  of 

.six  months, 
|)er  anmini, 
lat  thoy  are 
>.s'.s  freight, 
t  shoiihl  be 
ice  would  be 
[)  be  derived 
K  which  the 
it. 


lly  and  ex- 
tables,  but 
li  are  tacitly 
rnment,  but 
regards  the 
iiiic  JMajesty 
lal  ought  to 
iliould  liave 
i  total  claim 
re  compared 

any  months 
re  shown  to 

'  docuinents 
tementnow 
le  case,  it  is 
the  United 
they  must, 
derably  ex- 

tes  that  his 
are  tiled  at 

le  claims  is 
icre  used  as 
.  It  seems 
nt  made  in 
laiins  exist, 
henandojih, 


lilMTlSIl     I.'IMOINDKI'—IAIJLKS. 


fJ41 


t  K'lv  l.<Mng  no,H.  „|'  tins, -hiss  .,r  clMims  in  the  case  of  ihr  nu'ivlnnt 
s  u,,s  1„  what  extent  this  state-nc.t  is  in.-o.rect  is  at  J  u^;^ul 
o.   h.ok.ng  at  the     nited  States  tabh-s  themselves.     Movo  y^rV^^^ 

;Sh  '''•'■"""  "'!' f  ;^'""-t  that  these  claims  Im'     ea   v    e'n 
uefulyexamin.Mlon  behalf  of  the  I'nited  .States  (u.v.Tiim     f      it 
he  iaet  oj  the  presentation  to  the  Tribunal  of  some  c)!'  I  .";(■.  v 
<  H  nu""T  *"'""^"^'=''<!^'^    '■'  t'"'  J'^i'i^^''   ''oport,  such    ,;     VhUm  of 
c.f       !•!       'P'l''''''^-   '''''■'*'""'  ■■".i"nes,  which  are  in  no  wav    nil 
cated  )r  desenb.Ml ;  a  ela.in  of  >^ir,,mn)  by  tiie  master  of  the  L     isi' 
or  interrnpt.on  of  busincss-neithcr  ol"  which  claims  is    o     e    o  m  j 
e nhed  ^-  any  alMdavit  whatev.-r;  a  claim  of  s],),(„>,>  b  -  a   .    sen^ 
lor  loss  o   olhce  ot^consnl ;  a  claim  by  r:i,enc,cr  Xve,  tlie  n  Kster  o  -fl  ,". 
Abigail   lor  inore  than  817,0(>0,  Ibr  personal  etlects  ^c;  e      ns  b*  n^s" 
tws  and  unites  of  vessels,  (over  ami  above  their  dJim  i  Is    b^     ,^s m^^ 
.'llects,   of  >^20,0(K»  and  ><UKmK  tor  the  loss  of  w  ^"^  ml   nanv  oHu^ 

41  c 


1' 


i|    ! 


( 


i  II, 
i.ihi 

lilt 


'> 

i  ;       \\ 

I'i  1     >■• 

1 

i 

h« 


Wi 


I- 


INI)  I-:  X 


Ail;iins.  .Mr. : 

111.' 

Iii.s  iioto  ()l'A]ii'il  7,  iH(i:)  

Tho,  a.itlK.r  ..f  1  h,.  ten. I  iiidVivrt  Vla'im's 

Aunpimiii.  tlic:  

t. 'ikes  coal  tu  fli(.  Alahaiiia 

Aid.    (See  (inril  linluhi.)  

Alabama,  tlic  : 

nof  dispiitc.l  that  .slic  was  intfiMlcd  lor  war 

-Mr.  Adani.s  j;iv,.s  iiif<.niiati(»ii  coiict'niiii..  

.V  eronnMdl.is  inlWrinatim.  to  tho  Lu^^M:)iii;.o;;  m'.hMVown 

.. lM.it  ot  (•.>,mMissi„„or  <.f  CMstoms  n-ardins-  the 'xvh^v] 

It  ^Tu  j"i!''f '^"•'.^■'"•ti^or  pro.,!' t..  tin 'c'on^^to;:::: ;; : 

^l.;J.ol.(;.t.>rol  th..  Con.nussio.u.r  ..f  th- Cnston.s  li„ds  1h.  ";;,o;;i;  h.;;,- 

(.)nl,\  ,^)  and  thn.iij-h  tho  F,nvii<;n  OitU-c,  (Jnlv  •,>•') 

i'  ditional  proof  thron^r],  tho  Troasmv,  (J„lv  -r.i)  

.a  d|  lona   ].ioo(thn,„o.l,  m,,,  ForeioV()m,.,>:(.]u  v'-J4) 

I T  S  tW  "'^■""-''  ^'"^  •'••^^^•'"«  authodtio.  (:j;  iv-5):: 

..so..r)w  *'"'  ^  '"''"  '••^■^•"""iiend  tho  .soizuiv. .  

'    ot-tl[)t)     \)l      .,-._....  ------V...... 

i npHioione.v  of  tho  sub.^tMnii.uV  iVi-o.-oodi ii^^s 

:S«?;;'{,;^liS;;:£::™!."^:''''' '-A^i,i,ina;:;;;;;:;::;:;;;;;;; 

lauds  pnsouors  and  ropaii-.s  at  .faniaica  . .     

l'r<.ooo(  ino-.s  at  ('aj.etown.  oai.ture'ofSoa  ISride 

pi-oooodinj.s  at  .Simon's  15av.  

rhe  Tnsoaloosa  ...  '  

h.'v  annaniont  dofouded  by  (iioat  Britain" 

-\ lal.ama  ohunis,  (soc  Grnut,  rrcwJnil :)  

origin  of  tho  term 

the  term  well  known  in  Istit'i ••'*', 

Aiar'"the : '"""*  ^*^'  ^'"^  ^"'*^"*^^"  •'"*"*"  ifif^h'cmnmi^sion;.;;;  ^ !  :::;;::::::; 

armament  of  the  riooroja,  iVimi  lier 
Alexandra,  the :  

])roeeedinos  eoncornin"- 


VilZr. 

'>7,."i'.t 

Ml 

'^r,  s:. 

KM 
11 -J 
IJ7 

I  SI  I 

11)11 

1111 


,->ii 
Ml 


811 
.^'11 
111' 

•Ml 

:ti 

1)4 
<)li 
!»() 
5)7 
!)7 

i»i) 

lti» 

!»!» 

Km 

101 

10: ! 

'J7(i 

19!> 
!!)•> 

i;»> 
lo- 
ll:: 


i\U 


IM)K\. 


:i 


I  ••)  ' 


\iiii('iilili'  scllliiiiciil.     (Sci'  Tntilif  iij'  W'tisliittijlon.  ) 

Aiiiiiiiis: 

iiiilVicMilly.  oriiiral  Kritiiin  (owanl  (lie  I  iiilid  Stairs  rst:il>li>lii(l ."i:!.  .'i.'. 

its  relevancy  to  the  issues  lielure  I  lie  'rrihiiiial .'i:; 

I, Old  Westhm.v's  \  lews  eoiieeniin;; .'i  1 

Mr.  Iieriiard  ^l<nita;;iie's  \  lews  eoiieeniiiiL; .'>  I 

I'arl  Jviissell's  views  ('iiiieeniin<:[ ."i  I 

statciiieiits  in  tlm  Itiitisli  Case  re,t;ai(liii,L;- .")."> 

Ailiitratidii,  (seo  '.I'lihinml  of  ArliUrolUni  : ) 

seniM!  of,  (see  liiilincl  ('hthiin:) 1-',  !.">'.•,  1>.",.  -Jul .  •JM' 

leliised  liy  Lt)i<l  K'lissell I'.il 

treaties,  the  place  of  war •Jll',  '.'1- 

Arclier,  tlie: 

a  tender  of  t  lie   I'loiida ''J 

Ar.i;nnieiit  of  I  lie  Iiiiled  States 

l»re|iai\'d  hy  the  oflicial  counsel  df  the  I'liited  States :. 

ArgniMeiit  of  (ileal  I'nitain -i.V.t 

its  iiatuii! -.'i;:: 

Armed  vessels : 

tlie  dispatch  ol.  from  nenlral  jiorts  illegal -:'■.  ITl 

their  aniiaiiieiit  from  neutral   jiorts  defended  h\'  ( Jreat  riiilaiii ■.'>;'. 

Arms: 

purchase  of.  iioi  fdi  l)iddcii  liy  iiilei  iiatioiial  law  .  (  note  i .M 

Asylum : 

doctrine  ui'.  coii-idiicd  'i.\  Mr.  l'.\arls i:,;i 

Award ; 

character  and  crfrci  uf !.'>,  U; 

A/niii  : 

ilefinil  ion  of  iicnirality ."ii 

T.ad  laith  : 

ilia  ( luvi'rnmcnt   necessary  to  'le  |no\ed  in  dider  to  sustain   a   charge  ol' 

injurious  iie.'^li^eiiee :;(i I 

l>ahaiua,  the  : 

takes  the  armaiiieiit  to  the  A  la  ha  ma '.iii 

I'.ayley,  (Joveriior : 

uiitViondly  action  al   .Nassau  reiinrdinj;- the  I'loiida  in  l~li-.' (ill.  7:1 

I'ase  of  naval  operations: 

detined  1)y  Sir  K'.  I'almer l:ii 

defined  hy  Mv.  Kvarts Itiii 

Mr.  Waite's  views  rogardiuj;-  it '<]'.'< 

l>el<;iuiu : 

laws  tor  <'iiforcin,n-  neutialilx'  ol' :;ij 

iiellij^ereiit : 

not  reeojfiiized  jiolitically  :  the  \('ssel  of.  docs  not   enjoy  piivilejic  ut' e\- 

teiTit(uiality I."):; 

iu  case  of  violation  of  lU'iitrality  hy,  the  remedy  is  af^aiiist  thi!  vessel l.")), 

Jh'itisli  view  as  to  these  points 'i'.'T 

Jh^Uigereiit  power  : 

exercised  hy  liiiled  St.ates  of  right  in  suppressing  insurrection 7 

nou-ac(iuieseeuce  in  siicii  exercise  hy  another  power  is  intervention 

Itelligereut  riglits  : 

in  case  ofrehel  hostililies  heloiig  to  the  sov(>reign  of  ligld,  to  the  rehid'hy 

sulleraiiee Id 

conferring  them  on  tlie  ichcls  l»y  (ireat  ISiitain  was  intervention lo 

Jh'rnard,  Air.  Montague,  (sec  .liiimiix  :) 

his  views  on  the  'J'reaty  of  W'ashiiigtou "Joi 

his  views  regarding  tlie  language  of  treaties -Jll 

Iilockade-ruuning : 

carried  <m  iiiuler  liritish  tlag  with  toleration  dt"  liritish  (ioN'crnment 11:! 

Ihazil : 

laws  tor  enforcing  neiil rality  of :>.'« 

doctrine  regarding  supplies  of  coal l:>(i 

doctrine  r»'specting  liospitalitics 1  :i:i 

Ihiice,  Sir  l'r(!d(>rick : 

thanks  the    I'nited  States  in  the  name  of  Her  Ihetaiiic  .Majesty  for  their 

course  toward  the  Feu ia us -l.'i 


I'll  HI- 

.  li  I. . ).  t 

.)!  > 

.".1 

:.  I 

:.  I 

.").') 

',  l>',, •j(ii,-,>:,!t 

IIM 

-JKi.'Jl- 

?:• 

■>:>[* 

, -'w:: 

•.•;;.  171 

.M 

I.V,' 

, "n 

;v   of 

.'.III 

;ii; 

Cii;.  T:i 

■i:;i 
liiii 

:;ii 

'  cx- 

i.",:; 
1.-):, 

l-bv 

Id 

111 

vid-j 

•,'ll 

11:! 

l:!(i 
K!:; 

lu'ir 


!■ 


IM.KX.  ,;4> 

I'lilluilv,  .1.  I ». :     •  I>ii,,, 

n.r!^:::::?\::L:^r^    <-fsnH.v..ss..isini:n,i:u,.i ;„ 

•'II.    '' .iiic  s  \  lew  s  ( oiiccriiiM"  ' '-•' 

" :.|.:: 

V, 

<  ;^illl^.  l.iiiii  : 

Ills  virxysas  In  thr. Inly  ur.-,ri/in-.. Ilsi„.,.t...l  v....!. 

Uimks  til,.  iiKJirnt  rlaiiiis  arc  in  lii..  Trcal  v  -'' 

'  ah  (I  ;  '■   >j(i;; 

}■':'"■";"'''•  f"'  <oii«'<'iniii^r  iiciilralilv,  (unlet 

^^^^  insxH.vvsi,.;.ar.iii,-ii,epnwMsni^nhi,nni,:,;::;:;::-;;;;;;;;;;;;;^  ^^ 

lasc  (iT,  cilcii 

t  a  nil  inn-.  , Ml. : .mo 

'"^.^lurai':':"^:?' 

<  '.IM'-*  :  .11) 

or  tlic  hvn(;„v..niiii<iil.s.I..livrr,.,l  I)...a.„ila.r  I.-.    1-71 

nu-Snanlia^^t?'''  ■""'^"  '"^^""'■'^  '•'•'-'-•>  "^  --nns;;;  :.:;:.■--;::;: ;      ,;; 

laits  ('oiicciiiiii;; 

Cliiiicsc  (!,.(. t  :  '"      1  i:, 

rlJl^l ^"•"'"""'■^"""""■i'voniK.  ItniislM.nvi.nn.nnt ,„- 

I'm-  arhifijitiuii  as  (icscrilK'd  in  llic  Tivatv 

stat.'iiioiit  or • M,  n;.  i>,-j()n 

Chuciicc,  the  :                             1-^7 

a  tfiiilcr  ot'lJH!  I'lniida. 

C'larcmlon,  Lord:                             7'.» 

bis  vicw.s  as  to  tlic  indirrcl  clainis 

<  iial,  supplies  ol':                                                   - ill.') 

do(!triiio  (if  Hrnzil  ivj;ardiiio- 

fo  Mie  SluMiaiidoah  at  MelbTmni. " .'■x'.'fssi v,'. •*'•' 

>ir  li.  J  •aimer's  vi(3\vs  le^fardini;- '■'" 

^''"  Y'^'^*""  •'"■o""'^^"^  i'',iii>rdin'^'.".'.'.V.'/.".. '.'.'.'.;;■"■■■ :'•'••; 

c  ^..£i.tiiV':;^;:xa;;:{;.J:  *■  ^"""^'  -"■  ■  ""■  '"'i-'^-^  c^.>ve,.„n.e„, ,J,,^ 

his  opinion  iej;aidiiij--  tlie  Gcoi oia  in  l^ilj 
C  omniissioiis:  10^ 

ort'ecfc  of  on  offeiidiiij>'  t'ruis(>is 

Sir  K.  rulnier's  views  reKiirdiiio-.. .'..'.'.. I7(i,  •,>•><; 

Mr.  JOvarts's  views rcfjanliny..? •  427 

nilt!8  of  international  law  rcspeoi  in" ^'^'^ 

«  ontederatc  asoucies :  " ir,| 

tlioir  establislinient  in  (ireat  Ihitaiii  defended  'in. I  ;..  fwi    i 
t -onstitntional  disabilities,  (see  /«/<■!  mlllJla/Aa^lV'  '"■^^'""^ '^'•'" 

no  iuiswor  to  a  charjro  of  violation  of  an  international  <Int  v 

systematically  covered  bv  British  Ha.r 

a  vesst'l  specially  adaj)ted  for  war  is  le.'arVl.Vr  iV.  VntemiVfiMnni '. ^ '"'  ' '- 

Inn.tationsofrighttodealin.aecordin.'-roM^-Kv^^^^    '^  ^^.^^' 

Counter  Case:  "        n.  i.\.ui,s 4()0,  lOr. 

of  the  two  (;o\  epuiients  delivered  April  15,  I,-)?-.'  with  m<u,r< 
(  rinicau  War:  ^"  >  '    '—  »iiii  pjoois r^ 

indefensible  course  of  Great  Britain  dmin-r 

Cuba,  (See  Spain :)  " 4t;,  H 

Cnshin;;,  Mr. : 

his  arfrunieut  in  reply  to  Sir  li'oimdell  I'ahner 

bis  oliservations  on  the  recruitments  for  tlie  Siieua'ndoai, r^*.' 

.j'l  J 


iw 


\4l 


V  1 1 


.li.i 


il; 


1-1 


<;  Ml  i.M)i;\. 

i».  '  , 

J'tt«i.'. 

)  l.llllil^ir-.,  I  >ci'   I II  ill  III  X.)      llllifisl,  liiil'nril  iliiiiiis  : 

lilies  lor  inciisi  I  rill  j;' '.'I'.' 

.mi  I  mis  (if  I  lie  vvroiiL'.-ilorr  ;iii  clciiiciil  ol',  in  )(irt •.'I'.' 

>li(tiil(l  Itc  all  iiHlfiiii.ity 'Jir> 

ii|i|)iit'ii(i(iii  ol'  lilt!  rules  eoiieeriiiiij;- •.'!.'( 

Nlr.  Coliden's  \  iews  rej-iinliii;;- -IM 

1,1  nil  Sliiiile\"s  views  reiiiirdiii;; -JlT 

Mr.  I'oislei's  views  le;fiir(lil|i;' -jIT 

l.iil'il  ivlissell's  views  reniirdill^j ".'IT 

II  sum  ill  uross  slioiild  lie  iiwiinleil  l<ir ■.'•.'( i 

lemoteiiess  or  nearness  of,  to  lie  detei'inineil  by  'I'rilmiial 'i'i'i 

iicile  re;;ardiii;;  I  lie  assessment  of '>[- 

the  ]iriiiei|ile  olConiiiensaliiiii  liu-,  as  iiiaint allied  liy  (ilea t  I'ni tain :iiM 

report  of  I  lie  rMniiiiiltee  apiioiiited  liy  lioaid  of  trade  rej^jai'li";;' -'I"' 

Deiiniai'k: 

laws  for  eiiloiciiij;  iiriitiality  of ;;7 

1  leposit  of  llie  offense  : 

liy  Hie  I'loi ida  at  Mobile  :  ai;;iinieiit  as  to .'>  II .  .'i  (li 

I  >ili.i;eiice.     (See  Dnr  IHIiijemr.) 

line  Dilieeiiee.     (See  lliinliii  of  J'iudJ'.  (li'iiil  Itritaiii  : ) 

eon  ten  lion  of  I  nited  States  rejuaidini;  Itritisli  want  of I' 

not  esereised  to  iiievcni  lift  iii^  out ,  ei|iiippin,n,  or  ai  iiiiiii;  ill  its  Jnrisdiit  ion 

ol'  \  i  ssels  lilt  el  111  ed  to  eailN  oil  War  ajiiiilist  tile  I   i  1  ted  States 17 

nor  to  prevent  its  ports  from  litiiij;' used  as  liases  of  naval  operiitions IT 

tlie  |»lirase  is  a  definite  and  praelieal  one I.M 

'•diliyenee  ■■  implies  zeal.  a)i|ili(Mtioii.elfort.  «Ve 1.V> 

■•  due  "  implies  reasonalileiiess,  a]i]ii'o]iriateness,  and  adeuiialeucss I.'i.'i 

tibjeelions  to  I  be  Ib'itisli  deli  nit  ion I.'i.'i 

ilelinilion  of  dilij^eiice  Iiy  Iititisli  and  Ameriean  eon  its l.')!i.  l.'iT 

limit  of  tile  obi ij>at ions  e  eated  by  tliis  leqiiiremeiit  of  tlie  'i'le.ity I."i7 

no  t'vid.enee  of  (lie  eNeieis(>  of,  submitted  by  (ireat  liritain lHr> 

Ibitisli  delinifion  of ■.'•'iT.'JCiS 

sources  of  tlie  obli<;jitioiis  to  <iliserve.  aeeordiii;;  to  Sir  Ikonndell  I'almer IN.'i 

rules  iiml  iiriiicli>les  of  inteniational  law  rei;ardin;;-  ( I'almeii :',<> 

the  I  nited  States  observame  of  in  jnaetiee (Id 

Mr.  Kvarts'  views  legardiiij;' 1 1:'..  iHil 

Mr.  ('nsliiiij;'s  views  regard iiii;- 4"^7 

Sir  j;.  {'aimer's  views  in  the  ease  of  l.iiird's  rams .4!il 

Dnniiid,  Captain  : 

eviiUmiM'  re>i,arding  the  I'lorida .")•-' 

i:. 

Kvarts,  Mr. : 

hisarjiiiment  in  reply  to  Sir  {{oiindell  1 'a liner \\-i 

I'videiiee,  (see  Hiirdtii  i>f  J'roof:) 

of  breach  of  law  to  besouj^ht  from  those  who  j'ive  information 

the  Tiiitt'd  States  have  invariably  reipiired  legal,  before  (Mimmeiieing  ]iro-  ll.'i 

eeediligs 

the,  belief  of  Consuls  does  not  eoiislitnte  pi'imii-fmU- U.") 

Kxeeiitive  ]u>wi'r; 

im  hides  the  power  of  iireventiiij;  violations  of  law til* 

l)eenliar  iulvanta,ues  of  (Jreat  Mritain  lor  the  exercise  ol'  such  power I.M 

llxterritoriality  :  l.Vi 

ofa  vessel  of  A\  a  r.  the  )iiivile<>('  is  [lolitical  and  <liser«!tioiiaiy I.Vi 

it  is  accorded  only  to  vessels  of  veognizod  politii'al  jioweis I.'i:!,  4.'"i."i 

the  British  view  regardiuf;' •Jtt.'i, "JitT 

sir  1'.  Palmer's  x'ww  regarding 4*27 

extent  of  the  right  of.  (I'.VJirts) 4.'il 

1\ 

j'enians: 

cmirse  of  the  I 'nited  States  towards  jiistilied 4."i 

Fish,  Mr.: 

his  instructions  to  Mr.  Motley  of  May  l.'i,  1(^60.  and  of  September  "i."!,  lS(il>.  li».") 
I'iore : 

eoncerniiig  neutralitv :><> 


'■^'f^^ 


•JIV 

•-•ir. 
■i\:< 
•n: 

•ilT 
•JIT 
•.'17 

•7i- 

:',HI 


.MI..MC. 


I'tiiiii 

i: 

IT 

l.M 

I.V. 

I.". 

I.V. 

1. '.!'>,  l.'w 

ir.v 

{'*•> 

•.'•■,:. -jr.  ■< 

v....  ■■'<<> 

..  li:l.4H» 
t-^T 
J'.tl 


I4^,> 


lU'll- 


S(il>. 


11.') 

n.". 

4Ht 
l.M 
l.Vi 
l.Vi 

l.-.:!,4.". 

•j!t.").  -JltT 
4-JT 
4.'.1 


4.". 
1i).') 


iM>i;\. 


ridiiiiii,  lli<> : 

lit  Mvci'iiiMil,  iiirniiiiiilMiii  l>y  Mf.  .^iliiiii''  (■iiiiccniiiiy,.. 

act  inn  1»\   II  rr  Mnji'siy's  <  ii'\  <'i  niiifiit 

iiitcniiil  pidiir  tJKil  sill'  WHS  specially  ailaplcd  I'or  war 

i'c|>i>rl  to  l)c  inter II Icil  I'm  the  Italian  (inseriiinenl 

the  rc|Hirt  ascertaiiieil  In  lie  wit  limit    I'minilal  imi , 

licf  ic^fistry 


'UT 


I'llKc 


want  III' line  till i;ici ICC  in  not  iiii|iiiiin,n'  cmieeniini;' 

want  ol'ilne  ililinelice  ill  iiol  n>in;;-  llle  lliiwcis  '4i\eli  li\  liie  iiiereli.iiil^'  slnii- 

|iinu  act 

arrival  at  .Nassau 


t  he  e\ccllti\  c  |iriMi  ciliiins  I  here  a    la  i  line  nj'  I  he  ilile  ilili-ieiicr  ier|niieil  l\ 
the  Tieaty '. '. 

I  he  sei/iue  1. 1'  I  lie  I'lmiijii  ami  >lili»ei|iiillt  Jiliiicial  lUdceeiliiiMs 

trial  anil  I'elcase.  partial  ami  niijiisi  eharaiter  ol'  the  iiriiieei'iiii;s 

departure  I'rmii  Nassau 

arniini;'  at  (ireen  ( 'av 

atlenipls  III  elude  Spanish  laws  and   tails,  and  then  arrives  at  Mnliili' 

eiial.H,  priiN  isimis,  and  r ises  reernitnients  from  Nassau,  .lannary,  Ist;;!.. 

I  eceives  I'resh  siipiilies  iil'  eiial  and  repairs  at  Marhadiis,  {"clpinary,  l"^ii;> 

at  I'ernainlmco 

repair.s  and  coals  at  lierninda,  .lnl,\   I.".,  l-^ii:! 

at  llrcst.  receives  recruits  and  lu,  i  i-  nery  I'm  mi    Lis  erpnn! 

at  Marti II ii| lie   at    jialiia 

li(>r  tenders,  (iieat  Ihitain  liahle  lor  l  heir  ads    

r(!asoiis  why  (iieat  Itritain  is  mil  r'  sponsililc  for  the  acts  ol'.  as  ^ei   I'm;  h  in 
the  I  British  Aryiinient 

iier  aniianiciit  no  iiei>lii;eiice    .    the,  ]iart  of  (Jreat  Itritain  : 

sir  K.  I'aliner's  aiiiiiniciit  concernin;;'  'tcr  entry  into  Mobile   

rei)l.v  of  the  counsel  of  llie  I'liilcd  .Sliites  to  sir    I'.  I'aliner's  ;ir;;iinieiil 

l'<)rei;;ii-l'',nlistiiiciit  Act.  (sec  (Iritil  H'.tiihi.) 

if  Uilopted  as  the  nieasnre  of  duties,  (ireal    liiilain  siill  ;;ii:lly  of  eiilpahle 
lie;>lij;'ence 

not  the  nieasnre  of  international  old i<;al ions 

if  defective  it  should  have  heeii  aiiieiided 

its  (h'l'ects  were  j;lariiie 

.sir  Ikoliert  I'hilliniorc's  opinion  of  i  i 

IJaroii  ("liainieH's  opinion  of  it 

eoiiii»arisoii  hctweeii  it  and  the  Inited  States  neutrality  law  ot  l~'l~ •J^. 

history  of 

was  inefticiciit  and  its  el'ticieiie>diiiiinifsliod  hy  .judicial  lonstniclimi 

note  regard  i  11  jf . 

dehale  upon  the  act  of  l-'IU 

debate  upon  the  act  of  |S70 

correspondeiKic  relatin.u'  to  aineiidineiit  of 

eouHideration  of.  in  the  Itritish  Arjjnnieiil 

its  ellicienc.N  neiintained  hy  (ireat  liritain 

I'oister,  Mr. : 

liis  views  renardinj;'  injuries  to  I'nited  .'states 

I  'ranee : 

Laws  for  eiiforciiii>'  neutrality  of 

Course  of  (Jroat  iJritain  towiird,  dnrinj;- the  Ameiic.iii  lievolntion 

fraser,  Trenliolin,  iV.  Co.  : 

tlio  linaiKtial  ajicnts  ot  the  insurgents 

I'rasev,  .loliii,  the  : 

coal  sii]>]»lied  from,  to  the  Slieiiandoah  at  Melhmirne 


.  w 

.V.I 

.11 

till 

."i* 

i;ii 
I'd 

<;:; 

Id 

frj 

III 

ol 
lii'i 

1)11 
Ti'.  T.') 
T."> 
T.') 
Tii 
Til 
T7 


/I 


.'.I  I 

4ii: 


I'.t,  \r> 
lit 
111 

t>,s 
•,'h 

r.T.-'Tii 

t'.i 

iiii; 

•.'•,'i; 


•J  !•,»,  :uii» 
•itiit 


c. 

(feoroja,  the;  : 

notoriety  of  her  const  met  ion  ami  i  lest  i  nation 

registry,  cleaninee  and  dei)artuie 

armament  iVom  the  Alar 

information  by  Mr.  Atlam.s  eonctuninf;' 

inefficient  action  of  I ler  Majesty  •  (iovernmeiit  regarding 

receives  eo.al.s,  supplies,  and  repairs  at  .Simon's  Bay,  and  goes  to  Clun-bourg 

is  sold  at  Liverpool 

reasons  why  Great  Britain  is  not  responsible  for  the  acts  of,  as  .set  forth  in 

tlio  British  Argument 

lier  arinament  defended  by  d'reat  Britain 


•2\: 

;!•.*.  :')4 
4!) 

Ill 

i:m 


104 
107 
lOS 
108 
lOi) 
1(»1> 
110 

•2H1 

•2ei) 


i;4s 


iM)i;.\. 


m 


i 


% 


Kh 


■  I.:; 

I  Id 


M 


1^: 


(  i<i\  >'.  Illllrlll,   I'dl  III  tU': 

ilsiiiliiii'iici-  11111)11  llif  (ilili^al  imi  III  oUmtvc  diir  dilincnir.  (  I 'Ji'iiiri.  I 

(if  (ileal  1)1  i  hi  ill  ciiii^uU  red  \\\   Mr.  (.Iiisliiiii; 

<  iijiiit,  I'nsidi'iil  : 

liis  Mcssiim' as  to  t  III' .\liili:iiii;i   claims 

fMniiviiic.  liOid  : 

s  icw.s  as  to  Joliii.sdii  (  lairiidoii  (Joii\(  ii( imi 

\  ic-\v.s  ...-.  to  tlie  Treaty  ol   Wasliinntoii 

(ileal    Itritaiii.  (.see    Aiiituits.  J)iit   JHIii/tiKv,  Hrtviilirc   I'oinr,  iiDriijii-r.nH^liii'iil 
Ally  liixurijitil  Aiiiiil,  Miniiiiixd  /.(tiVK,  I'lrrofialirr,  l'i)/'ri('ii(Uiii<'<s :) 

relation  ol'Iier  jieoitje  to  rebel.s  eliaii.u'ed  hy  (,>iu'(Mr.s  I'idi'laiiial  ion 

sy.slenialie  aid  lunii.sliod  IVoiii,  to  tlie  iiiMii'^ciit.s 

wiiieli  i.s  I  lie  cause  orj>n'at  iiijmy  to  t  lie  liiitod  Slates 

tin-  aid  IVoiii  was  or;;aiii/e(l  and  ol'lieial 

I  lie  only  ])o\\cr  wliieli  permit  ted  siieli  acts  

contention  in  its  Case  and  Coimter  Case 

responsibility  for  Die  acts  of  Itrili.sli  snlijeels 

la i lure  to  use  11  le  ]iierot;ative  ])o\\er  of  tlie  Crown 'JT. 

averse  to  lenislatiiiu:  on  tin;  siibjeel  of  neutral  diil  ies 

Iiei  laws  I'omitared  with  tliose  of  oilier  jtoweis 

lier  history  as  a  neutral  eoni])ared  witJi  that  of  tlic  Iniied  States :!-^ 

her  course  as  a.  belligerent  towards  neutrals 

invite. 1  a  Joint  acti.'ii  \\  ilh  I'ranee  in  American  ali'airs  Ijeloie  iiisiirre<tion 

broke  out 

deteriiiines  to    ret'oniii/.e    iiisurneiil>.    as   lielli^-ciculs    liel'ore    insiirreet ion 

broke  out 

other  unfriendly  proceed  ilia's 

which  established  an  unfriendly  feciinn  toward  tiie  I'liited  Stales 

itstioveriiment  ]>ossessed  ('noiigh  jjower  lo  carry  oul  any  course  of  action 

il  niij^ht   iulopt 

the  prei(>j>ative  of  the  Crown  ample  for  the  ])urpose 

numerous  examples  of  its  exercise  diirint;-  the.  rebellion 

ad\anta_n(>s  enjoyed  by  it  for  tin,  exerci.se  ot' executive  jtowcr 

oiiini  pole  nee  of  iiarliainent 

her  duty  under  the  law  of  nations  to  have,  seized  the  iiisurj;t;iit  eriii/.ers.. 
la i lure  lo  use  due  dilij^eiici!  to  obtain  information  of  the  insiirjjent  schemes. 

to  iiistnut  to  maintain  vifiila nee 

rc5;ardiii(>'  prosceiitiiiji' ofliecrs 

lo  break  up  the  liostih;  system 

by  rclyiiiji  on  the  Foreimi-lliilisdneni  .\ct 

by  nenleetinjj;  to  anunul  that  act 

ill  not  *letaininj>' olVenders,  when  retiiriiinu;  to  llrilish  ports 

ill  not  exeludinjv  otreudiii<>'  cruisers  from  Itritish  ports,. 

in  dolayinj;'  to  make,  representations  to  insiir.nviit  aj;eiits 

licr  course  rcffiirdiiif^  .Mr.  Adams's  rci>resentutioiis  defended 

lierdilij'oncc  not  atfected  by  the  doubtful  construction  of  tlu>  I'oreij'n-Kii 

list  men  t  Act.  (Talnier)  .! 

look  activ*!  and  si»ontane()iis  measures  to  aeiiiiire  information  iVc,     (rai- 
nier)   

irceii  Cay : 

arriviiiji;  of  the  I'lorida  at 

irohSKuni.     (See  IhaiHUiix.) 

II. 
lardiiiii',  Sir  .lolin : 

illness  of 

iattcias,  the: 

destroyed  by  the  Alabama 

licklcy,  Comniuiider : 

in([uires  the  condition  of  the  I'lorida  when  leasinj;  Liverpool 

luH  opinion  conccrninj;'  her  at  Nassau 

lolhuid  : 

laws  for  ciiforeinji'  neutrality  of 

conr.se  of  (Jrcat  lirilain  toward  during  llic  .\merican  licxolution 

iospitalitics: 

alleged  excessive  to  iiisur;j;ents  in  Mrilish  ports  explained  and  just  ilied  iiy 

(Jreat  Ihitain  

lostile  a<ts: 

acl:^  done  in  violation  of  neiilralitv  are.  ( llv  arts) 

I iiiiiier : 

deli  nil  ion  nf  neiMitdii  \ 


riiuc. 

J'.m; 

i;t:; 
.'ii:!,-.'ii« 


III 

I . .-. :. 

I-.' 

It.  .t. > 

11! 
I '.I 


n;:;,  n;, 


'•<>, 


in.  it:', 


ll'.i 
Mil 
I  111 
I.Vi 
I.-.--' 
1.-.:; 
I. ".it 

Kill 
ICII 

Ii;ii 

IT-J 

i::-. 
i:.-. 
I'l; 


1(1  i 
li:! 
7ii 


.".II 

I'.i'i 
■I'.i 

:'.ii:; 
I.-.  J 


:;'.tl 
c.i:. 

..  .         I'.h; 

i',>:! 

•:():;. -ji  I- 

Ill 

II. :.:. 

I-.' 

l:!.:.:) 

i:! 

i:i 

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.  ..-,'7.  u;:!.  Hi.') 
:u),  :!•.' 

:i-.  III.  it:'. 

1> 

ctilMI 

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etiim 

-■> 

.">■' 
.">.) 

1(1  idll 

Il'.i 

Il',» 

Il'.t 

I.Vi 

l.VJ 

/.•vs..         i:.:; 
Kill 

n;ii 
1  I'll  I 

17:: 
17.". 

I7ti 

•  >...;> 

11-1',  11 

10  i 

(r.ii- 

n:; 

7t> 

!>1 

07 

:,!* 

:.',t 

:',(■> 

4'.) 

.1  l.v 

:;o:; 

I'.J 

TiO 


i.vi)r..\. 

* 

1. 

liiiliiiil  ciiiiiii^.  ^.1(■^•   I'rciilii  of  ll'ti^liiiiiilnii.  /.(Dd  Ciiini'-  : ) 

llic  iiMiii  not  1(11111(1  ill  the  'I'lTiity 

i<iuiviilciil  lo  Milt i( II in!  clniiiis 

(ii.sc'iissi'd  ill  <lic  iii'u;<)(  in  lions  prcicdiiiy;  tlic  'i'l'Ciily 

ill!    .Idliiisoii-Ciurt'iMloii  Com  ciUidii    T.-iils   hccimsi"    liii\  iiif    not    iiuliidid 

ill  it : 

not  waived  li,\   I  lie  .Joint  llii;li  l.'oiiiiiii.ssioiicr.s 

set  loitii  in  llif  .Viiicricaii  (  use  in  (lie  laiinini^cjor  tin' .loiiit  Hi^ii  (diniiii.-- 
sioncis 

IN  plana  I  ion  of  niisiiiidciMandin^'  ii^ardiim- 

(•oiisidcration  tor  est  imalinj;'  daniaucs  lor 

an  ad  judical  ion  niioii.  cs.si'i.ii  ial  lo  a  i  inn|di'tc  >i'tlliiiii'nl '.    

1  njill'ics.  (,-^('c  Ciiihd  iShlli >i :} 

the  relation  between,  and  I  heir  caii^r.  w  liieli  is  rei|ni-.ilr  lo  1011111 1  :i    1  la i in 

lor  daniaii'es  t'oi 

lii^nru'eiit.s  : 

|n-e\'eiiled   liy  I'nited    .Slate-,    iVoin   eairsin;^   en    niariliiiH'  v;\v   IVoin    llieii 
own  resources 

make  l'"ra/<'r.  'rreiilioliii  A  ( 'o.  their  liiiaiieial  ai;cnts 

.■intliori/.(>  the  inirchasi'  oj'  eoiislrnct  ion  of  a  navy  ahroad 

I  iisiii!j;eiit  aiicnl.  (sei^  Hiil/inl,  : ) 

estaldislKMl  in  (ireat  liiilain  lielore  1  lie  oni  h:-eak  ol'llie  in>ni  rciiion 

iiitei'viev  s  with  lAMilJolin  Iviissclj.  and  their  represental  ions  to  liiin  ... .      1! 

apiiointineiits  oj'  I'nllock,  Iliisc.  North.  Anderson,  and  <  ireen 

iniieecdiims  of,  in  Mnji'land  for  I  he  format  ion  ot'aii  iiisnij;'eiil  navy II 

Inlei  national   law.  (see   Mniiitipul   l.mv.   Xiiilniliti/,    Xmlidls.    Tini'-ji  ul    iiiisli- 
iiiyloii  : ) 

the  olilinations.  dl'  not    allceted  liy  llie   eimstit  iitional   disi  1  ihiit  ion  ol'  ihe 
jioweisofa  (iovt'rmncnt 

nor  hy  tin'  i list  itnt ions,  cnstonis,  .n  habits  of  a  pcojiie 

calls  for  seastaiahle,  ,ipproi>riate.  ami  adeiiiiaie  ineiins  lo  pre\ cnl  \  iolat  ion 
of  nenlrality 

which  means  should  he  a\  ailnhlc  as  somi  as  rciiiiirei' 

jii  iiici)des  in  force  \\  hen  tlie  facts  occnrrcd 

Intervcnl  ion.  ^set'  liiUiiiiri  I'l  l!ii/liy-<:) 

what  cMist itntes  it ' '. 

ahstineiice  from  it'  noi  iicntralily 

Interest  :  - 

should  lie  inelnded  in  eoii.ipeiis.it  ion  I'cM'  (lan.ia,iies ' ;. 

Sir  K'onndell  Palmer's  ar;;'iinient  reniirdim;' ' 

( ■oiinscl  of  the  rnited  Stales.  ai\n'nnielit  of.fiii  ivpl> 

Iron-clads,  the :       --  j 

proceed  in  us  c(nicernin'4 

It.-ily:  _  '  ■•        . 

law-  lor  e.nt'orcinn'  neutral  if  \  ol  " 

•  '■     •'•  • 

.la,\'s  'i'lcaly.  i  see  JDirdcit  <;/'  t'roof:) 

intcrivst  allowed  in  proce(Hliii<j;s  under 

.lefVf'rson.  Mr. :  '  ,. 

liis  letter  olSeptenilter  .-.,  171t:; ■.... 

.hihiison-Clai'ciidoii  <'(iiiveiitioii  : 

ne;;()fiiitioii.  of • ; 

nofaeceptiiltlo  to  tin;  liiited  States 

(Jrc'iit  Mritain  .so  inl'oniied 

.loiiif  Hi;j1i  ('()ininissi()ii(;rs  : 

■     .ippoiiUmeiit  "of,  liy  I  he  President 

'        '  ;  K. 

Klii^er  :, 

ih'tinil  ion  id'  iienlrality   

I  . 
l.aird,.loliii,  M.  !'. : 

entitled  to  no  credit  as  a  witness,  (note) 

T>anicl,  the.  (see  SliciitiiKhMli  :) 

sails  from  laverpool  with  otliceis.  armament,  ;iiul  tiew,  for  Siienimloah  . . 

transfers  the  .same  to  the  Slienaiidoiili 

l.nw  of  nations,  (see  liilcniiiHoiial  Law.) 


(14!! 


I\ezi-. 
H'.l 

i:t.". 
I'.i'.t 

•ill.-, 
•jd'.t 
-.'•Jl 

Vll 


III 
III 

111 
II-.' 
Ill 

II.". 


I  17 
I  17 

I  I- 
ll~ 

•.T..", 


•.'•Jl  I 
.-.."il  1 

11:! 

:'.( 


II.-. 
i;i;! 
p.)  I 

P>T 


.-I) 


M.-. 
in; 


flJ 


■mi 


ni  ■.  i  ■ 


*;:  , 


G')()  INDEX. 

0 

M. 

M<'KilIi)|),  (.'oniiiiaiitltM' : 

opinion  icf^iiiding  tlie  I'loiiila ."v-^,  7:'. 

Miirshiill,  C.  J.: 

his  Judgment  in  llotm  rs,  lliniely '.) 

Melbourne : 

l>aitiality  ol" population  of,  towanl  insurgents 1 1 ~ 

recruitment  of  men  for  the  Slienandoali  1 1'.i 

Merclianls'  Shipping  Aet,  the : 

failure  to  use  its  powers  in  the  ease  of  llie  I'loiidii lil 

-Mirandii  ex])edition  : 

history  of  it II 

Mnnieipal  law,  (see  liiliviiathmal  Lair  :) 

not  the  measure  of  international  ohligations '. ..     H.  l!<ti 

of  (heat  Jhitaiu  fonsidered  in  the  Britisli  Arginnent •,'(>!• 

for  Avhat  purposes  rcferr(Hl  to  l»y  (Jreat  liritain,  (Palmer) :VX\ 

of  otluu- powers,  tlie  comparison  with,  eousidered  1>.\  Sir  !>'.  I'.ilmn   10.') 

\. 

NasliviUe,  tile  : 

arrives  at  liermiula  and  coals  there I:!^ 

ariives  at  Southampton |:!li 

(roals  again  at  Mermuda 1  |ii 

Nassau  : 

symi)athy  of  tlu^  colony  with  tiu'  insurgents 7  4 

note  concerning  the  sanu! •.'•.".! 

Negligence.     (Set;  fhic  JJiliniiK-c,  llrral  Hiihiin.) 

Neutral,  (see  liilirrriilitiii,  hiitviKilioiial  I.iiir,  li(Ui<jm'nt :) 

duty  of.  in  case  of  rehel  hostilities ~ 

tluty  to  prevtmt  dispatch  of  armaii'.i-nt  and  ships  of  war,  (IMiillimore ) 'Jd 

becomes  responsible  for  acts  of  its  su^'jects  by  know  le(Ig<'  oi'  siitierauce  oi- 
by  direct  permission •,'!  t 

Neutrality,  (see  JlrUificiriit :) 

abstiiUMKM!  from  intervention  is  not  - 

state  of,  how  reached  in  case  of  rebel  liost  ill  ties -20 

delinition  of  it  by  I'hillimore •>] 

delinitiou  of  it  by  the  ("ounsel  of  the  United  States •i'J,  r)0 

should  be  nuuntaiiu'd  by  seasonable,  ai)i)roi»riate,  and  adeipiate  nu'ans. ..  I-l> 

unfriendliness  of  (Irc^t  Ih'itain  should  have  been  considi  red  in  ju'ovidiug 

such  uu'ans 11- 

other  clenuinis  which  Oreat  Jbitain  should  have  considered  in  jiroviding 
its  means 14- 

Neutralitj*  laws,  (see  Hiniicipal  Law  :) 

of  the  United  States  compaied  wiMi  the  I'oreign-lCnlistment  Aet Isi 

auu'uded  at  reipiest  of  (ireat  Britain  ;{(• 

of  Italy.   I'la/il,  Swit/.erlaiul,  J'rance,  Spain,   Portugal,  i^c..  Ac.   com- 

pare(i :!7 ,  38,  ~m 

This  comparison  ciiticised  by  Sir  ]{.  I'.ilmer 4(l.'> 

the  prev(!ntive  ]iowcis  in  the  I'nited  States  law  exauuued.  (I'aliuer) 4il.'),  4','(» 

Northcote,  Sir  Statlbid: 

his  views  on  the  Treaty  of  Washington ■Jtl'i,  "iill 

•>. 
Orders  in  council  : 

an  intense  assertion  of  neutral  obligations 4- 

1'. 
I'aluiei',  Sir  Ktninu  >ll : 

his  speech  on  the  )»owers  of  the  British  (iovernnient   to  sei/.e  suspected 

ves.scls 'jr> 

his  view.s  regarding  the  Inited  States  performance  of  their  duties  as  neu- 
trals    4l> 

his  views  respecting  the  prerogativtMtf  the  Crown , l.'il 

his  i>'guinent  on  ilue  diligence,  ttVeet  of  comuiissious,  and   supplies  of 

coal '■'<<> 

his  argument  coiu;erniug  recruitm(!nts  lor  the  Sheuundoah ■"»'*(l 

his  argument  respecting  the  entrance  of  the  Florida  into  Mobile ...   ."t4I 

lii.s  arguuuMit  respecting  the  allowance  of  interest rMii 

l'arlinnu>nt  : 

debates  in "j:!! 


I'll-C. 


11- 

i;i 
11 

1-^.  IKIi 
•iC.'.t 
:',lt:; 
.III.') 


111" 

74 

;■.■."-'      -J" 

cr  or 

•,•11 

•J(  I 
.....  -il 

\s'.'.'.  14> 

iiViim 

11- 

idinu, 

14- 

4.^1 

:u) 

coin- 

...:;T.:^e,ri()4 

40.') 
4(l.'.,4'J(l 

-id-i.-Jtrl 

l-tl-tl 

-jr. 

4l> 

1''1 

s  of 

:'■■'•■> 
•V,>(l 
.")41 
"•".II 

•r.i 


INDKX.  651 

riiilliiiii):(',  Sir  If.  : 

his  iiUtliDiity  fit  I'd -^t* 

rt)itii<;iil : 

law  tor  culorciiij;'  la-iitrality  ot" :;."> 

wiU' with  fl".!  ]5aii»lii  Oriental,  course  ot'  the  I'liiied  States  iliiriiij; 44 

I'ladief,  {'(xKie : 

liis  views  i'e<fai'diii<^  the  jtowiii's  of  arhilratoi's "JIO 

his  views  re;;aidiiig  elaiiiis  tor  ei)iisi>((iieiitia1  daiiiajfes •,'•.*•,* 

i'rero-iative,  (see  flratl  /'>nlani :) 

minieroiis  exaiiii.les  of  its  exereise  diniiij;'  the  iiisnrreetioii I  II' 

(ireat  I  Sri  tain  failed  to  use  it  in  favor  of  the  I'nited  States Hi:!,  Ki.'i 

exanunatiou  of  tho  I'nited  States  Arnnment  ui)on,  by  Sir  iJ.  I'alnier :'.'.*.'> 

^fr.  I'.varfs  reniarlcs  u]>oii  174 

I'revt'iition  : 

distinction  lietween  it  and  pn  nisi  in  lent :!".'.  141* 

the,  ^lowi'r  of,  insejtarahle  from  the  idea  of  exe(itti\  i'  |iowcr l.'il 

Sir  lionndell  ralnieTs  \  lews  as  to liiH 

Prizes: 

The  exclnsico  of  fioni  Kritisli  ports  no  iieiielir  to  the  I'nited  Statis j-l 

rroelaniation.  (the  (.,>neen's,  conferring;'  bellijrtient  rights  :  i 

was  voluntary  and  anticipatory in 

chan.ued  lenal  relations  lietween  (Ji-eat  Uritaiii  and  the  insnrnent- 11 

I'rnssia: 

laws  for  enforcing;  nentrality  oi" :'i7 

rnrsiut  of  onisers: 

iioti'  on  the  claim  for  . '■''>>> 

n. 

•'  it'easonalde  ^roninl  to  helieve  :'" 

Uritish  delinition  of -.'ti- 

Sir  II.  I'alnn-r's  views  rej;:irdinn- llvf 

Mr.  Kvarts's  views  rej,ardin.n'  I'lt' 

IJeliel  Iio.stilities  : 

<HU!stions  re;;ardinj;' should  ho  decided  liy  other  Towers  as  they  ari^:■    

I'ecrnitnients,  (see  Shciittiitloidi  :) 

aUojfcd  illeijal  consi(h'red  and  detende(l  liy  (iieat  iSritain •.'-- 

K'elribution,  the  : 

history  of  tho  vessel lid 

tho  capture;  of  the  Jlanover 14ii 

the  capture  of  the  Kniily  J'isher Ill 

arrives  at  Nassau  and  is  scdd  there 14-j 

K'ipou,  Lord  : 

his  views  on  the  treaty  of  \\'a>hiiij;ton •in-.>, -Ji):; 

Unles.     (See  'I'nati)  of  ll'ii>ihiiiyli)ii.) 

!»U!*sell,  ilarl.  (see  ./»;»/(((«  ;) 

thinks  the  Alabama  and  tlu!  Orofo  a  scandal  ;ind  re|iroach iK! 

is  inlonned  by  the  insuri;ent  aj;out  of  tin;  ])nr))ose  of  the  insnr>;<'nts  |o  de- 
stroy the  coininorce  of  the  I  Hi  ted  States Ill 

denies  Uritish  liability  for  the  Alabanni  claims T.M 

rc^l'iisos  arbitration I'.tl 

tlie  author  of  tlu)  term  Alabama  claims I'.l-j 

his  views  re{>ardin<;  daniaj^es -217 

b'lissia: 

laws  lor  enlbrcin;;'  the  neut ralit.v  of :',7 

I'nssian  ships,  tho : 

considered  by  .Mr.  ( 'nshinjj; I'.t'.i 

S. 

Sale: 

of  arms  and  cont  raband  of  w  ar ■.*:!.  •,>().'> 

Soil  Kin;;',  thi'.     (See  sliciiaiithxili.) 

Seward,  Mr.  : 

instructions  regarding  the  indirect  i  laims  .   I!»() 

Shenaudoah,  tiie Ill 

pnreliiise  of  the  Sea  King II.", 

enlistinoiit  of  part  of  the  crew 11" 

ilopartiue  from  London 11,". 

is  armed  and  manned  from  the  J.aurel IKI 

infornnition  roKardiu};,  eomninnlcated  to  Karl  liiii'.sell 117 

she  arrives  at  >lelbonriio 117 

|ti'rmiNslon  }»rnnted  to  eoal  and  make  repairs 1 1;* 


t;52 


INDKX. 


If  J 


'it  ij 


'ii. 


it* 


!f  i 


.Slu'iiiimloiili.  llu — coiitiniird  : 

tlic  Aiiicrifau  Coiisiil  jnotcsts  ;i;;.iiii>l   il 

IMTiuissiDii  'I". lilted  to  ;j;<)  ti>  llic  imblic  docks 

|iiii(iiility  ol'  ]U'oi)U'  of  iMc] bourne  toward  the  iiisiiiyeiits 

laift'e  reeriiituieiits  oC  iiien  for,  at  Mi'llioiiriu! 

I  he  ('oh>iiial  authorities  in  formed  of  coiiteinphited  retrnitinenls 

I  heir  iiiei'lieient  iiroeeediiij^s 

further  jiroof  oi'  reeriiitnieiils  furnished  llie  aiitlioiities 

I  he  aiitiiorities  i>arh'y  witli  tlie  eoimnaiKh'r  in  plai'e  of  lul  iiiij  

furl  her  in  format  ion  of  eon  tcmi  dated  re(;rnitiiieiits 

refusal  of  tlie  Colonial  authorities  (o  net 

depart un.'  from  Melhonrne 

excessive  repairs  at  Melltonriii' 

excessive  supplies  of  coal  i'roiii  the  John  l"ra/er  at  .Melhonrne 

arrixes  at  J  Liverpool 

reasons  why  <!rcat  IJrilaiti  is  not  rosponslhle  for  the  acts  of,  as  set  fVnth  in 
I  he  Itritish  Arjfnmeiit 

her  armameiif  tlefeiidccl  by  (ireat  Urilain 

Sii'  Ifonndell  J'almet's  aruninent  re^ardinji  reeriiitments  for 

.Mr.  (■iisliinj;'s  ohservations  on  Sir  K.  Palmer's  artiiiineiil 

Ships  of  war.  (see  /'cnnc/n,  .iniiid  J'cxxcJk,  I'.rtcryilor'uililij :) 

their  privile,u,es  in  neiirral  jiorts.  (Sir  I'.  I'almer) 

no  rule  rejiardinj;'  their  exclusion,  (I'ahin.'r) 

no  distinct  ion  between  those  of  a  reco!;iii/.etl  nation  and  those  of  iiisiir;^enls 

recoifiii/cd  as  liel  line  rents,  i'  I'almer) 

S()\  (ii  unty : 

(denieiiis  of.  as  to  war  or  peace 

Spain : 

laws  for  en  fore  i  11  j;'  neutrality  of 

treaty  between  tin;  United  States  and,  of  ln]\) 

eonisc  of  I'liitcd  States  toward.  rej;ardinj'' Cuba,  .jnstilied 

Spanish  American  (,'olonics: 

course  of  the  United  States  diirini;-  their  war  of  indein'iideiice 

Stanley -,l(dinsoii  Convention  : 

nejiotiatioiis  of 

Stanley^  Lorn : 

liis  views  rejiardiiin  iiijinies  to  the  I'nited  Slates 

Submission.     (Si't*  Trcalii  of  Jrayhiiifitoii.) 

SiitVerance.     (See  .\c  tit  nil.) 

Sumter,  the   .  - 

coals  at  'I'rinidad 

arrives  at  (iibraltar 

reincsentatious  of  Jlr.  Adams  concerniiifi 

sold  at  (Jibraltar 

arrives  at  Liverpool 

Sweden  : 

laws  for  en  forcing'  neutrality  of 

Switzerland  : 

laws  for  eiiforein"'  neiitralil  v  ol 


f'.i'-. 

117 
ll~ 
II  - 
I '.I,  ly- 
1  ".>■.' 
|-J-> 
I -,'4 
1-J.". 
l-ili 
V>7 
i-i- 
Ciii 

i::n 
i:!l 

'>"*; 

.V,'() 

.'):!•.' 

1J7 

|:i(i 


):; 
n 

i!t;; 
•-'IT 


i:5(; 
i:!(; 
i:!t; 


:!! 


T. 
Tables  of  liy;ur»'s : 

])resLiitcd  by  tho  American  agent.  August.  lU,  isT'i 

presented  by  tho  Kritish  agent,  August  11),  1H7'^> 

I'aeony,  the  : 

a  tender  of  the  I'lorida 

Talhiliassee  : 

facts  c<mceriiiiig - 

Tonterdeii,  J.,ord  : 

his  views  regarding  rresideiit  Washington's  course 

Terceira,  ati'air  of: 

history  of  it  

]>arliamentary  debate  regarding 

Sir  I>.  Palmer's  views  regarding 

Ml'.  Kvarts'H  views  r<'garding' 

'I'hornlou,  Sir  Kdwurd: 

his  dispatch  of  April  11»,  ISil'.t 

'I'reatics  : 

principles  to  go\  em  construction  of.  (  I'almer) 


r)7'.> 
dill 

;:> 
1  f.'.,  1 1 1 

10 

lyt; 
lltl 


117 
II- 

ir.»,  V2-' 
\->\ 

V>7 

i-J- 

i:!o 

C'.il 

r.'.i 

.VJO 

r>:vj 

\n 
r.io 

.i;;i 
.1) 

I'll) 
j:! 
11 

1-J 

lie; 

•n: 

i;!o,-,>i»;! 

U'.C 
i:!ti 

:•.  1 

r>ro 

•ill  I 

.   ll:'.,  IH 

'r.4 
•r.54 
'lyt; 

'le-:? 

r.ti 


[NDKX.  (!').') 

''■'-'■ 
Ticaly  (if  W'asliiiiiitdii.  (sci-  Ihn  I)iHiiiiict ,   lull  nuiliiniitl    l.ttiv.    ImlirK'    ('liiims, 

.Witlrals,  Si ninilitij : ) 

(irovisioiLS  rcsiicctiii;;'  arliitiatinii 1  ! 

lirovisliiiis  ri'six'ctiii^  claiiiif* I  I.  !.'» 

rules  of I'l 

IIk'su  rules  tliu  iiMi»ei'ative  law  in  this  cdiitroN cisy 1  lii.  I  17,  H''> 

Iiow  the  tii'st  i'iil(!  is  to  li.   apjilied  to  I  he  facts I  l(!.  Il-^ 

how  tlie  second  and  fhinl  iiiies  ai'e  to  he  ai>i>lied I  tf> 

nothing;  adiiiissihle  ■which  diniinislics  Ihcii'  iorce 117 

I  he  oI)li<;ations  of  (ii'eat  IJritain   to  ohservt!  them  has  the  forci-  of  an  ohli- 

j^ation  nnder  international  law I  17 

1  he  rules  call  for  scasonahle.  ai>]M()]>iiale.  and  adei|nate  means  to  preserv  > 

neutrality 1  !!• 

claims  coniprchcmlinj;'  it  ls7 

negotiations  ]U'ccedini;' i-'J 

o])eninKnf  ncLCotiations I'.td 

lireliminary  corresjiondeiicc  conccrnin,!;' I!t7 

moaninn'  of  tin;  words  aniicahle  setlh'meiit  ".''•(» 

sii])posed  concessions  in  liy  (Jrcat  Urilain  <'Na mined •.'!)('. 

(h;bate  in  I'arliament  le/^aidiiii;' 'I'.VJ 

deliups  the  <lnties  of  nentruls  with  increase  of  strict  iii'ss •i()7 

freneli  translation  of  rules  of Hi:! 

Sir  Iv*.  Palmer's  views  eoiu-ernimi'  the  lirst  i  ide IvJd 

Mr.  I^\arts's  \  iewsc'nnc(>rnin,ii;- the  liist  rule 17- 

Trihiinal  of  Arbitration  : 

its  authority  alisoliite If, 

Ncope  of  the  snlimissioii  under 1-,  I  •">'.•.  "I'^i 

the  solt!  Jiidiio  of  what  constitll!l■^  duedilin-enc.' I')7 

tiic.jiul;;('  ol  its  own  powers 'iln 

Tnsealoosa  : 

a  i»riy.(!  captured  liy  the  Alai'ama  and  lifted  as  a  1  emit"/ Klii 

proei'edin^s  reMarilini;' hid.  |ii| 

(•apturcs  liy Id:'. 

r. 

I  nfricndlincss  of  ( ;rcal  Ihitaiii.  i  sei'  .Iniiiiiix,  (imtl  llrihtiii  :) 

an  eh>nient  to  be  considered  in  luepariiiii'  means  to  preser\c  ni'iiiraliiy  ...  11"^ 

inoi'eased  by  tins  conduct  f)f  the  IJritish  (u)\('inment Ib'i 

I'nitod  Stiites,  (se((  Xiiilnditi/  fAurt:) 

suffer  great  injury  from  aid  furnished  insui'j^euts  from  iJritisli  territory  ..  I'i 

naturo  of  tlu!  injuries  to K! 

Ih(;ir  neutralitv  law  of  l-l-',  compared  with  tlm  IJritisli  Foreigu-Kulistment 

.\ct  -. '. J- 

their  legislative  history  shows  a  constant  desiro  to  )»erforiu  their  duties  a^ 

lUMitrals till 

their  history  as  a  uinitral  compared  with  that  of  (ireat  Jhitain :>-',  Id,  \(\2 

their  liistorv  as  a  neutral  further  examined 40.  Hi, '■i'2> 

treaty  with'Spaiu  of  IHID 4:! 

the  failure  of  tln^ir  oHieers  does  not  release  (Jruat  IJritiviu Hit 

their  alleged  eonilonemeut 'JI~ 

their  views  of  '•  due  diligence"  in  jiractice 4  Id 

V. 

\'essels,  (se((  Aruud  I'vanih,  I'.jicvriUii'tuHhi :) 

to  w  lii(  h  arbiti'at  ion  relates I"-."),  'iW 

W. 
Waite,  Mr. : 

his  argument  ou  the  sui)[>lies  of  coal ">r' 

Walker's  cxiiedition  : 

defense  of  the  conduct  of  the  United  States  (ioverumcnt  regarding 44 

Wa.shington.     (See  Tirultj  of  U'anhin<iloii.) 
\Vasbinjj;ton,  I'rosideut: 

his  cour.se  as  I'resident  toward  boliigercnt  nations -JK,  4(1 

note  regarding  the  same 'i'27 

Wo.stbury,  Lord.    (See  AnimiiK.) 
Wirt,  y\v. : 

his  views  regarding  allowance  of  interest "J'-jiO 


